S. Hrg. 103-703
EMPLOYMENT NON-DISCRIMINATION AQ OF 1994
^Y4,L 11/4: S, HRG. 103-703
Enploynent Kon-Discrinination Act o...
MjjiARING
OF THE
COMMITTEE ON
LABOR AND HUMAN RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
S. 2238
TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS OF
SEXUAL ORIENTATION
JULY 29, 1994
Printed for the use of the Committee on Labor and Human Resources
OCT 1 ^ 1994
U.S. GOVERNMENT PRINTING OFFICE "■■rfvnr
"^V
82-696 CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington, DC 20402
ISBN 0-16-044874-3
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\ / S. Hrg. 103-703
0 EMPLOYMENT NON-DISCRIMINATION AQ OF 1994
4, L 11/4: S, HRG. 103-703
loynent Hon-Discrinination Act o. . .
hi£;ARING
OF THE
COMMITTEE ON
LABOR AND HUMAN RESOURCES
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
S. 2238
TO PROHIBIT EMPLOYMENT DISCREVONATION ON THE BASIS OF
SEXUAL ORIENTATION
JULY 29, 1994
Printed for the use of the Committee on Labor and Human Resources
^ss^^mf^^^^u
OCTl,
U.S. GOVERNMENT PRINTING OFFICE
82-€96CC WASHINGTON : 1994
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-044874-3
COMMITTEE ON LABOR AI^ HUMAN RESOURCES
EDWARD M. KENNEDY, Massachusetts, Chairman
CLAIBORNE PELL, Rhode Island NANCY LANTJON KASSEBAUM. Kansas
HOWARD M. METZENBAUM. Ohio JAMES M. JEFFORDS, VernxMit
CHRISTOPHER J. DODD, Connecticut DAN COATS, Indiana
PAUL SIMON, Illinois JUDD GREGG, New Hampshire
TOM HARKIN, Iowa STROM THURMOND, South Carolina
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
JEFF BINGAMAN, New Mexico DAVE DURENBERGER, Minnesota
PAUL D. WELLSTONE, Minnesota
HARRIS WOFFORD, Pennsylvania
Nick LittlEFIELD, Staff Director and Chief Counsel
SUSAN K. HattaN, Minority Staff Director
01)
CONTENTS
STATEMENTS
Friday, July 29, 1994
Page
Pell, Hon. Claiborne, a U.S. Senator from the State of Rhode Island, prepared
statement 3
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, prepared
statement 3
Summerville, Cheryl, Bremen, GA; and Ernest Dillon, Detroit, MI 4
Dart, Justin, Jr., chairman. President Bush's Committee on Employment
of People With Disabilities; Warren Phillips, former publisher. The Wall
Street Journal, and former ceo and chairman, Dow Jones & Company,
Inc.; Steven Coulter, vice president. Pacific Bell; and Richard Womacfe,
director of civil rights, AFLr-€IO 13
Prepared statements of:
Mr. Dart 16
Mr. Womack 49
Broadus, Joseph E., Georce Mason School of Law; Robert H. Knight, Family
Research Council; and Chai Feldblum, Geonretown University Law Center,
on behalf of Leadership Conference on Civil nights 28
Prepared statements of:
Mr. Knight 90
Ms. FelJblum 123
Kahn, Philippe, president, chairman, and ceo, Borland, International, pre-
pared statement 48
Leadership Conference on Civil Rights, Washington, DC, prepared statement . 52
Patrick, Deval, Assistant Attorney General, Department of Justice, prepared
statement 53
Chafee, Hon. John, a U.S. Senator from the State of Rhode Island, prepared
statement 57
Goldwater, Barry, former Senator from the State of Arizona, prepared state-
ment (with an attachment) 58
Browning, Rev. Edmond, presiding bishop. Episcopal Church, prepared
sttement 61
King, Coretta Scott, president, Martin Luther King Jr. Center for Non-Violent
Social Change, prepared statement 62
Berry, Mary Frances, chairperson, U.S. Commission on CivU Rights, prepared
statement 64
Camevale, Anthony, chair, National Commission on Employment Policy, pre-
pared statement 68
ADDITIONAL MATERIAL
Communications to:
Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachu-
setts, from:
Allaire, Paul A., chairman and chief executive officer, Xerox Corpora-
tion, Stamford, CT., dated July 26, 1994 46
Neukom, William H., senior vice president for law and corporate af-
fairs, Microsoft Corporation, Redmond, WA., dated July 27, 1994 47
Stead, Jerre L., chief executive officer, executive vice president, AT&T,
Dayton, OH., dated July 28, 1994 47
on)
Page
Conuminications to — Continued
Bonsignore, Michael R., chairman, and chief executive officer, Honey-
weirinc, MinueapoUs, MN., dated August 19, 1994 48
Religious Action Center of Reform Judaism and other religious leaders . 78
Weld, Hon. William F., Governor, State of Maasadiusetts, dated July
21, 1994 79
Whitman, Hon. Christine Todd, Governor, State of New Jersey, dated
August 17, 1994 80
Evans, Robert D., director, governmental affairs office, American Bar
Association, dated August 22, 1994 80
Religious leaders endorsing the Employment Non-Discrimination Act
of 1994 82
Hereck, Dr. Greg., American Psychological Association 83
Sabshin, Melvin, M.D., medical director, American Psychiatric Associa-
tion, dated July 20, 1994 87
Briggs, J. Rex., project director, Yankelovich Partners, Norwalk, CT 87
Cameron, Paul, Family Research Institute, Inc., dated July 19, 1994 89
Articles, publications, etc.:
Employment Discrimination Cases — Appendix I 94
Cases Drought under State Constitutions — Appendix II 106
Cases alleging violations of Federal statutes — Appendix HI 112
Simmons Market Resarch Bureau survey of readers of gay publications
(with attachments) 115
Breakthrough Yankelovich study provides new insights on marketing
to gay and lesbian population (with attachments) 119
EMPLOYMENT NON-DISCRIMINATION ACT OF
1994
FRIDAY, JULY 29, 1994
U.S. Senate,
Committee on Labor and Human Resources,
Washington, DC.
The committee met, pursuant to notice, at 10:31 a.m., in room
SD-430, Dirksen Senate Office Building, Senator Edward M. Ken-
nedy (chairman of the committee) presiding.
Present: Senators Kennedy, Metzenbaum, Simon, Wellstone, and
Kassebaum.
Opening Statement of Senator Kennedy
The Chairman. The committee will come to order.
From the beginning, civil rights has been the great unfinished
business of America, and it still is. In the past 40 years, the Nation
has made significant progress in removing the burden of bigotry
from our land. We have had an ongoing and peaceful revolution of
change, and that accomplishment is a tribute to our democracy and
to the remarkable resilience of the Nation's founding principles.
Federal law now rightly prohibits job discrimination because of
race, gender, religion, national origin, age, and disability. Estab-
lishing these essential protections was not easy or quick. But they
have stood the test of time, and they have made us a better and
a stronger Nation.
We now seek to take the next step on this journey of justice by
banning discrimination based on sexual orientation. At the press
conference introducing this legislation, Coretta Scott King said: "I
support the Employment Non-Discrimination Act of 1994 because
I believe that freedom and justice cannot be parcelled out in pieces
to suit political convenience. As my husband Martin Luther King,
Jr., said, mjustice anywhere is a threat to justice everywhere."
This point was reemphasized today by other civil rights leaders
who have contributed so much to our Nation. The legislation di-
rectly parallels protection against job discrimination in current law,
under Title VII of the Civil Rights Act of 1964.
Our bill prohibits the use of individual sexual orientation as the
basis of hiring, firing, promotion or compensation. This kind of pro-
hibition on discrimination is well-established in law, and it can be
easily applied to sexual orientation.
The bill has been realistically designed in an effort to avoid need-
less controversy and keeping our eye on the goal, which is to elimi-
(1)
nate job discrimination against any Americans because of their sex-
ual orientation.
This bill is not about granting special rights. It is about righting
senseless wrongs. What it requires is simple justice for gay men
and lesbians who deserve to be judged in the workplace like all
other Americans by their ability to do the work.
The bill is narrowly drafted in five key respects. First, no clEiims
would be permitted based on under-representation of gay people in
the work force. Second, the legislation makes clear that pref-
erential treatment, including any quota, is prohibited. Third, the
religious exemption is broadly applied. Fourth, benefits for domes-
tic partners are not required, Fiftn, the Act does not apply to mem-
bers of the armed forces; that issue is now settled, at least for the
Congress, and we do not seek to reopen it.
Today, job discrimination on the basis of sexual orientation is too
often a fact of life. Throughout the country, qualified employees live
in fear of losing their livelihood for reasons that have nothing to
do with their job skills or their job performance. Yet there is no
Federal prohibition on such discrimination.
This bill is about real Americans whose lives are being shattered
and whose potential is being wasted. Today we will hear directlv
from two such individuals, fellow Americans, who performed well,
but for whom merit did not matter.
Some States have already outlawed such discrimination, but in
42 other States, qualified lesbians and gay men with excellent
records can be fired without warning just for being gay. It happens
every day. And the price of this prejudice, in both human and eco-
nomic terms, is unacceptable.
Job discrimination is not only un-Americ£in; it is counter-
productive. It excludes qualified individuals, lowers work force pro-
ductivity, and hurts us all. For our Nation to compete effectively
in a global economy, we have to use all available talent and create
a woncplace environment where everyone can excel.
This view is shared by many leaders in both labor and manage-
ment who understand that ending discrimination based on sexual
orientation is good for workers, good for business, and good for the
country.
Our legislation is bipartisan; it is sponsored now by 30 Senators
and 125 members of tne House of Representatives, and I am con-
fident the number will grow. We have the support of a broad-based
coalition that includes Coretta Scott King and former Senator
Barry Goldwater, the conscience of civil rights and the conscience
of conservatives.
Today's hearing brings us closer to the ideals of liberty and equal
opportimity. I look forward to the testimony of our witnesses and
to working with my colleagues on the committee and in the Con-
gress to enact this needed measure.
It is important that we remember as we debate the merits of the
Employment Non-Discrimination Act of 1994 that what we are
talking about is people's lives and livelihoods, men and women
struggling to find the security that so many of us take for granted.
Senator Pell could not be here this morning. He is on his way
to New York City to participate in proceedings at the United na-
tions in connection with the signing of the Law of the Sea Treaty.
He regrets not being able to attend the hearing this morning and
asked that his statement be included in the record and that along
with Senator Bingaman also.
(The prepared statements of Senators Pell and Bingaman follow:]
Prepared Statement of Senator Pell
Thank you Mr. Chairman, and thank you for holding this hear-
ing, let me begin by welcoming all our witnesses to the committee
this morning.
In one way, Mr. Chairman, it is unfortunate that we are here
this morning. It is unfortunate that in 1994 this Nation is still de-
bating the issue of discrimination. Didn't we learn anything from
the Civil Rights movement of the 1960's? Haven't we learned not
to judge others based on who they are or what they are?
Unfortunately, there are still too many of our fellow citizens who
go to work every day in fear of losing their jobs for reasons having
nothing to do with their job performance. Maybe we need to turn
to some of this Nation's Fortune 500 corporations for guidance.
AT&T, Marriott, and General Motors all have amended their em-
ployment policies to prohibit discrimination based on sexual ori-
entation because they realize that getting the job done has nothing
to do with the race, religion, gender, or sexual orientation of the
individual.
Mr. Chairman, I am a cosponsor of this bill and I am therefore
anxious to have this bill approved by the committee and by the full
Senate. Some of my colleagues, however, have yet to make a deci-
sion on the bill. I urge them to support the legislation because it
is the right thing to do.
Maybe we should take advice offered during a previous Senate
committee hearing, advice that has become very famous. In testi-
mony before the Senate Armed Services Committee in 1952,
Charles E. Wilson made the following statement, "For years I
thought what was good for our country was good for General Mo-
tors, and vice versa. '
If a prohibition on employment discrimination based on sexual
orientation isgood enougn for General Motors, it's good enough for
our country. Thank you Mr. Chairman.
Prepared Statement of Senator Bingaman
Mr. Chairman, I wish to address the importance of the Equal
Employment Opportunity Act of 1994. The desired outcome of this
proposed legislation is straightforward. Americans shall not face
discrimination in the workplace based on their sexual orientation.
This equal right extends the protection from discrimination based
on race, religion, gender, and national origin as stated under Title
VII of the Civil Rights Act of 1964, and disability, stated under the
Americans with Disabilities Act.
In the past, we have tried with little success to establish laws
that protect Americsms from job discrimination based on their sex-
ual orientation. In turn, the American people have been sending
their message approving protection from discrimination in the
workplace for all Americans. According to an editorial column in
the Philadelphia Inquirer, dated July 3, 1994, a recent poll indi-
cated that three out of four Americans supported laws to protect
individuals against iob discrimination based on sexual orientation.
The existing problem is that AmericEUis are being discriminated
against based on their actual or perceived sexual identity. Individ-
uals are being discharged of their livelihoods and being denied pro-
motions in their workplace. It is unlawful for an employer to deny
an applicant an employment opportunity based on race or disabil-
ity. I strongly believe that no one should, be denied employment for
reasons unrelated to their fitness for the job.
It is time for Congress to make a clear statement in America
that Americans should not be discriminated against based on our
identities. The Equal Employment Opportunity Act of 1994 makes
that point. This act provides that everyone shall receive equal pro-
tection under the law. It does not grant special rights, nor does it
deny equal rights.
The status of one's employment should be based solely on the
ability of an individual to perform to the standards of his or her
employer. Therefore, i urge my colleagues to commit themselves to
support this legislation that protects all Americans from bias and
discrimination in the workplace.
The Chairman. We are grateful to be able to hear this morning
from twe courageous individuals who have felt the direct impact of
anti-gay prejudice. They have been kind enough to come here and
share their stories with us and to represent all those who cannot
afford to speak out. Unfortunately, their pain is all too common.
I believe you both have valuable insights that we cannot get any-
where else. We are very pleased that you could be here, ana I want
to say at the outset that I know that this is not easy, and we ap-
preciate your perseverance.
The first witness is Cheryl Summerville, from Bremen, GA.
Cheryl worked as a cook for a national restaurant chain for 4 years
and received excellent job performance reviews, awards, and regu-
lar raises. She got along well with her managers and coworkers
and was quite content, imtil 1 day, she was fired for being gay,
plain and simple. No one tried to hide that fact; it was the new
company policy.
We are also joined this morning by Ernest Dillon, an employee
of the Post Office in Detroit, MI. Ernest, too, was a good worker
and a loyal employee, but a coworker decided he was gay and was
determined to run him out. Ernest was forced to withstand
unyielding harassment until he could take it no longer. Unfortu-
nately, his employer could not help him, £uid he almost paid the
price with his life.
Cheryl, would you begin, please? We thank you very much for
being here.
STATEMENTS OF CHERYL SUMMERVILLE, BREMEN, GA; AND
ERNEST DILLON, DETROIT, MI
Ms. Summerville. Thank you.
Good morning. Senator Kennedy and members of the committee,
and thank you For giving me the chance to be here.
My name is Cheryl Summerville, and I am from a small town in
rural west Georgia called Bremen. I sure never thought I would
testify before Congress, and certainly not on this issue.
I am kind of a private person, and this is not easy for me.
The Chairman. I will say to you, Cheryl, that you can just relax.
You know, we have a lot of hearings, ana we hear from a lot of peo-
ple, because this committee deals with a lot of people's needs. In
here a little while ago, we had some children who testified, most
recently, about healtn care. And the people we have heard from
never thought they would testify before Congress.
I think all of us imderstand that the laws we pass or try to pass
affect real people's lives, and I think your willingness to share your
experience is enormously important to help people understand
what this whole sort of stain on the conscience of this country is
about. It is about not treating people with respect for who they are
rather than for some other kind of test, which I think demeans the
country. Certainly, it demeans those individuals who treat people
unfairly and who discriminate.
And we know it is difficult for people to talk about things which
are most personal. People for example, do not like to talk about the
fact that they are sick, or that they have spent all their resources,
or about other members of their family. So we know this is not
easy for you.
But around here, you know, we talk too often in slogans and in
cliches. What is important is that this body, the Senate, our com-
mittee, and the American people understand what really happens
out there, what the real world is all about. And when we do, I
think people are fair and want us to be a fair country.
I tJiink you have been treated very wrongly, ana I think many
other people think so, too, so we just want you to tell your story.
We know it is difficult, but we appreciate tnat you are willing to
do that with us, and we hope you can feel comfortable in doing it.
You are among friends here.
Ms. SuMMERViLLE. Thank you.
I am kind of a private person, and this is not easy for me. But
it is important to me, and that is why I am here.
In 1987, I took a job as a cook at the Cracker Barrel Old Country
Store in the town of Douglasville, GA. I worked hard, and my co-
workers and managers really liked working with me. And they told
me so. I put in a mil day's work, often leaving my house at 5 in
the morning and not returning until 7 at night.
I worked there for almost 4 years and always had excellent per-
formance evaluations. I got awards and promotions. I enjoyed my
job at Cracker Barrel, and I thought I had a real bright future
ahead of me. [Pause.]
The CHAraMAN. Cheryl, we could hear from Mr. Dillon, if you
like.
Ms. SUMMERVILLE, I do not think it is going to get any easier.
The Chairman. I think you have said a lot already. Would you
like to just tell us in your own words, or would you like to read
it? You can do it either way; you are doing fine. You really are.
Ms. SUMMERVILLE. Thank you.
The Chairman. I think we all have a lot of respect for you and
your willingness to testify. You worked there for a little over 4
years, and you had done a good job and had good reviews.
Ms. SUMMERVILLE. Yes. One day in January of 1991, that all
came to an end. The chairman of Cracker Barrel, the Corporation,
6
had a memo sent around directing memagers to fire all employees
"whose sexual preferences fail to demonstrate normal heterosexual
values." When I heard it, I could not believe it. What would happen
to me? What would happen to my family?
I was scared. I was more than scared — I was panicked. Not be-
cause I am a lesbian, but because I relied on my job. I had respon-
sibilities and commitments, and I take that very seriously.
I had just bought a home, after saving for yes, and had a mort-
gage to carry. My son was in high school and had dreams all his
own. He was depending on me. I could not afford to lose my job.
You have to understand, although I keep my private life private,
it was not a deep dark secret to the people I worked with. I have
never hidden who I am. I had gotten close to a couple of my man-
agers, and they knew I was gay. But it did not matter. I got my
orders out, I was a good cook, and I was a reliable worker. Besides,
my life was a normal and regular as anyone I knew. I went to
work, I walked my dogs, and I loved my family.
I first learned about the policy from my sister and my sister-in-
law, both of whom also worked for Cracker Barrel at the time.
They had been read the new policv, and they called to alert me.
They could not believe that it would actually happen to me; after
all, everyone liked and appreciated me.
The next morning when I went to work, I went in to talk to my
manager, and she read me the new policy. She said she really liked
me, she said that I was a great employee, and that she hated to
have to let me go. But she called her boss, and he called his boss,
the district manager, who told them to follow company policy. The
corporate folks said the policy applied to everyone who was gay.
There were no exceptions for good workers.
So aft;er nearly 4 years of committed service with Cracker Barrel,
including raises and personal achievement awards, I was fired for
being a lesbian — something that has nothing to do with my ability
to do my job and do it well.
On mv separation notice, they wrote, "This employee is being ter-
minated due to violation of company policy. This employees is gay."
Deep in my heart, I knew it was wrong, and I could not believe
it could possibly be legal. I believe that in America, with such obvi-
ous discrimination, we figured we could go to court and fix things.
We were wrong.
If I lived in Massachusetts or Minnesota, the State law would
have protected me against being fired for being gay. But not in
Georgia. What Cracker Barrel did was perfectly legal under the
laws of Georgia, and most States. There was nothing I could do
about it.
But I still figured that the Federal law would protect me, even
if the State law did not. Aft;er all, our country had taken a stand
on civil rights, and that is what made us Americans. But Federal
law did not cover me, either.
Senators, what happened to me is not fair, and it is not right.
I worked hard at my iob, and my reward was getting fired for no
good reason. It should not matter who you are or where you live.
Discrimination is wrong, and it should not be legal against any-
one— anywhere.
This experience has been a real eye-opener for me. Maybe it is
because I grew up in a small town, or maybe it is because I trusted
people too much. I thought I knew what family values were, and
that I practiced them every d^ of my life. I had no idea that this
could happen, until it happened to me.
I never realized there was so much prejudice out there. I have
never done anything to hurt anyone, but since people heard about
my story, I have received harassing and obscene phone calls. I had
to take my son out of his high school because the school could not
assure his safety. /. i * •
All of this, because I wanted a Uttle piece of the American
dream— a loving family, a decent home, and a good job— just hke
everyone else.
Senators, the right to hold a job should not be based on whether
someone is black or white, male or female, gay or straight. It
should be based on ability and dedication. That is just what I grew
up believing. Is that asking for too much? I do not think so. And
I do not think most Americans think so.
I hope that you will take action to ensure that people like me —
a fellow American — can have the same rights as everybody else.
Thank you.
The Chairman. Thank you, Cheryl. I know that was probably
one of the most difficult moments of your life in many respects,
sharing this with us, but I want you to know that in your testi-
mony, I think you have said it all, and we are grateful to you. You
have provided a real service to us.
Ms. SUMMERVILLE. Thank you.
The Chairman. We are very proud of you and very proud of your
son.
Ms. SUMMERVILLE. Me, tOO.
The Chairman. You make sure you give him our best regards.
Senator Metzenbaum. vo- i r
Senator Metzenbaum. Ms. Summerville, it was very difficult for
you to testify, but it was very important. I think there are many
of us in Congress — I am not sure if there is a majority — who feel
as strongly as this Senator does, that any kind of discrimination
is just wrong.
As you were sitting there testifying, I remember that 51 years
ago, I introduced legislation in the legislature to ban discrimination
based upon race, color, creed, or national origin. At that time, that
was a horrendous idea, and I was smeared as a Communist for
coming out with such legislation.
But you have made a powerful statement that no one of us could
not empathize with and identify with. You are a good American.
You are obviously a wonderful mother. As the father of daughters
of my own and a grandfather, I iust cry out for you and your son,
who had to be withdrawn from his school because they could not
assure him of his security.
I do not know if we can pass this legislation, but I know I am
going to try damn hard to work with the chairman, whose bill it
primarily is, to pass it even in the closing days of this session. It
is wrong, it is evil, it is un-American to discriminate against people
by reason of their sexual preference.
8
And the chairman of the board of Cracker Barrel ought to hang
his head in same for enunciating such a poHcy. I respect your right,
and I think I have an obligation to you to do everything possible
to defend your right with respect to the matter of sexual preference
and to see to it uiat no individual in this country is discriminated
against for the wrong reasons, and this is one of the wrong reasons.
Ms. SuMMERViLLE. Thank you.
Senator Wellstone. Mr. Chairman, could I just add a word?
The Chairman. Yes.
Senator Wellstone. I will be very brief. Your words, Ms. Sum-
merville — and I will essentially repeat what you have heard. I am
really proud to be here with these colleagues, and your words are
very powerful, and I am very proud to be an original cosponsor of
this piece of legislation introduced by Senator Kennedy. And your
words make me even more proud.
I would thank you for being here.
Ms. SuMMERVlLLE. Thank you.
The CHAffiMAN. Senator Simon.
Senator SiMON. I would just concur, and I thank you. It took
courage for you to be here. One of my town meetings Saturday was
in Effingham, IL, where a woman came up to me afterward and
asked, 'Tour father was a Lutheran minister; how can you side
with homosexuals and gays?"
I do not know what people expect — do they expect you just to dis-
appear from the face of the earth? People ought to be judged by
their conduct, not their genes. That is true whether it is race or
ethnic background or sexual preference or whatever it is.
I can tell you this — I am not going into Cracker Barrel again
until there is a change in policy on the part of Cracker Barrel. This
is not right. You have not been treated fairly.
We clearly ought to change the law so that people are protected.
Discrimination, whatever its reason, is wrong, period. And when-
ever we do not live up to that, we hurt this country.
Thank you, Mr. Chairman.
The CHAraMAN. Thank you very much.
Mr. Dillon.
Mr. Dillon. Good morning. Senators, and thank you very much
for inviting me to testify for such a cause I believe so strongly in.
Before I start my testimony, there was a disturbance in the nail-
way and in the room there, in the back, that made me very sad.
There were black men who were practically just barging in, or forc-
ing their way into the hearing room. I do not really know what it
was all about, but it reminded me of the civil rights movement in
1964, when we were trying to enact the Civil Rights Act of 1964;
there were people who were doing the same thing then, and it is
very sad to see that sort of thing happen in a building such as this,
where there is a certain type of protocol.
The Chairman. I am not familiar with it. The hearing room now
is at full capacity, and there are probably people outside, but I do
not know of people trying to keep people out.
Mr. Dillon. No, Senator. These people came in through the
back, and they were just trying to force their way in. They came
in through the back room there.
The Chairman. Oh, I see. I will try to get a report. I am not fa-
miliar with what happened. But generally, the public comes
through those doors, and staff come throujgh the committee room.
In any event, I will be glad to look into it after the hearing.
Mr. Dillon. My name is Ernest Dillon. I am honored to be here
this morning and to be given the opportunity to tell my story.
I wish I did not have a story to tell, but I do. A story of harass-
ment on the job, of violence that nearly cost me my life, and of dis-
crimination that forced me from my workplace and robbed me of
my livelihood.
I began working for the postal service in Detroit in 1980. It was
a good job, a job I was extremely grateful to have. I worked well
with my coworkers. We were a team, and our teamwork made for
a very effective workplace.
My first 4 years with the post office passed quickly, and I re-
ceived regular raises. Then, in 1984, things changed. A coworker,
suspecting I was gay, began to make anti-gay remarks to me. I had
known him for a while, and I could not understand where his new
attitude was coming from. I was the same person I had alwavs
been — quiet and hardworking, never bothering other people.
Whether I was gay or not was not anybody's business, and it cer-
tainly did not have anything to do with my job. I did my job, and
I did it well.
But the insults soon escalated into more serious harassment.
They happened every day. They just would not quit. To earn a liv-
ing, I had to endure constant verbal abuse, and try to keep focused
while finding outrageous things written about me, plastered on the
walls of the office and in the trucks — ^nasty things, vulgar things,
hurtful and hostile things.
I reported these incidents to my supervisors and to my union
representative. My supervisors said there was nothing thev could
do to help me until my harasser actually "did something. Some-
how, these degrading experiences were not enough — ^he had to do
something more; he had to do something violent.
My union representative urged me to start keeping notes of the
incidents, and I did that.
This torment had broken the spirit of the office and compromised
our productivity. The harassment and hatred kept us from working
as a team. It was not fair to me, and it was not fair to my cowork-
ers.
The hostilitv was becoming so intense, I frequently considered
leaving the joD. But after a lot of thought, I decided to stay. I am
a black man from Detroit, and I have seen much bigotry before. I
had been taught at a young age that you do not run from prejudice.
You persist in the face of it. You work hard, you persevere, and
eventually it pays off. More than anything else, I had been taught
to believe that in America, if you do your job well, you have the
right to keep it.
Then, 1 day while on the job, my coworker cornered me, and I
thought he would kill me. He threw me down on the floor, kicked
me, and beat me until I was unconscious. He left me in a pool of
blood, with two black eyes, a severely bruised sternum, and gashes
in my forehead. When I regained consciousness, a supervisor
rushed me to the medical unit and then to the emergency room. I
10
was sewn up, received medication, and spent 3 weeks recovering
from my injuries.
When I finally returned to work, I was pleased to be working
again, but scared to death. Although the coworker who had beaten
me was fired, any relief I felt was very brief. All of a sudden, others
were now willing to pick up where he left off. They too began leav-
ing anti-gay messages at my work station and making anti-gay
slurs, both to my face and throughout the office.
I continued to notify my supervisors of these events. They would
not intervene, claiming they could do nothing to stop or prevent
such abuse. I tried to just keep doing my job, and I tried not to
think about it.
But this harassment continued for 3 years, and it kept chipping
away and chipping away at my spirit and my soul. Then, 1 day,
I received a death threat from one of my harassers. Fearing an-
other violent incident, I spoke to the staff nurse, who told me to
fo home for the day. I called a therapist, who advised me to get
elp, including filing a workers* compensation bid and an equal em-
ployment opportunity, or EEO, claim.
Soon afterwards, I filed an EEO claim, thinking that something
could be done to fix my work situation. I could not oelieve that peo-
ple were allowed to torment you on the job and get away with it.
I was still, getting my work done, but the work environment had
gotten so dangerous that I feared for my life and for my self-es-
teem.
The discrimination was so intense, it had forced me from my job.
It just was not fair.
The administrative panel that heard my case believed that I had
been wronged, but the appeals began. Eventually, my claim wound
its way into tne 6th Circuit Court of Appeals, who said the law of
the United States just did not protect me.
The judge said: "Dillon's coworkers deprived him of a proper
work environment because they believed him to be homosexual.
Their comments, graffiti, and assaults were all directed at demean-
ing him solely because they disapproved vehemently of his alleged
homosexuality. These actions, although cruel, are not made illegal
by Title VII."
I turned to my imion, my supervisors, my doctor, and the court —
only to find that in America, I am not entitled to be able to work
without fearing for my life. Well, that is just wrong. That is now
how I was raised. That is not what I was taught to believe in.
Something has to be done, and soon.
I have now gone back to work for the post office, but at a dif-
ferent branch. Luckily, I have not had to endure harassment or dis-
crimination, but without extending Federal law to cover sexual ori-
entation, my job, my livelihood and my safety are only a matter of
luck.
Please help me and the thousands of Americans who experience
discrimination. I want what every other American wants — the abil-
ity to work, to be treated fairly, to be judged by who I am, and to
be free from discrimination ana harassment.
I look to Congress for leadership in stopping the pain and preju-
dice, and in passing a Federal law to protect me.
Thank you.
11
The Chairman. Thank you very much, both of you. I just have
a very brief observation about that opinion that was issued on your
case, Mr. Dillon. In that opinion, it points out, "Dillon's coworkers
deprived him of a proper work environment because they believed
him to be homosexual. Their comments, graffiti, and assaults were
all directed at demeaning him solely because they disapproved ve-
hemently of his alleged homosexuality. These actions, although
cruel, are not made illegal by Title VII.
In other words, you are on your own, you are on your own. There
are no Federal protections here from this kind of discrimination
which this Nation has battled to achieve over a long, long period
of time for others. But this court indicated there are no protections
based on sexual orientation, which is the reason why we are here
today to support legislation to make sure that there are such pro-
tections.
Senator Metzenbaum.
Senator Metzenbaum. Just briefly. Mr. Dillon, it takes courage
to come before this committee and talk to the world about the prob-
lems that you have experienced. I just want you to know that I am
very grateful to you and to Ms. Summerville.
It is immoral what is happening to those persons who are gay
or lesbian, and I think we have a responsibility to do something
about it. I will not be here in the Senate very long, but I hope that
before I leave it, I will be a party to making a change so that dis-
criminating against people who are gav or lesbian is just as illegal
as discriminating against people on the basis of race, creed, na-
tional origin, or other bases.
The Chairman. Senator Simon?
Senator Simon. Just a note. It is ironic, as you mentioned before
you began your prepared statement, Mr. Dillon, that there are
those who, when one form of discrimination has been outlawed, will
not join in fighting other forms of discrimination. We should. Grod
has not made us all the same. We have to give everyone a chance.
Something is fundamentally wrong when you have to go through
what you have gone through. And that does not mean if we pass
a law saying you cannot mscriminate that everything is going to
be right the next day, any more thcui it is right for African Ameri-
cans today. But it has improved for African Americans. Not for all,
unfortunately; particularly for the poorest of African Americans, we
have not faced up to the problems of poverty. But you no longer
travel in the South and see signs that say "Colored and "White."
We have made progress, and one of these days, we are going to
make progress in this area, also, and recognize that we nave to
judge people on something other than how Grod made them.
We thank both of you for your testimony.
The Chairman. Senator Well stone.
Senator Wellstone. Just three quick comments. First of all, Ms.
Summerville, I believe you mentioned my State of Minnesota in
your testimony, or you talked about States that provided protec-
tion. I just want to say how proud I am of my State for passing
the human rights bill and law in 1992. I think leadership is inspir-
ing people to be their own best selves, not appealing to the fears
of people. And that leadership emerged in Minnesota, and a lot of
people did not think we could pass that initiative. I was proud to
12
be a part of that effort, but there were a lot of legislators who
stepped forward, as they began to educate themselves and listen to
the kind of powerful words that you all have uttered, who just fi-
nally decided that leadership is calling on people to be their own
best selves, including us. And we passed that law, and I look for-
ward to our doing that here in the Congress.
My second point is that Sheila and I have a very close friend,
and we have shared his struggle for the last 30 years. And I feel
like you all speak for him. I nave seen this man have to go from
one job to another because every time it becomes clear ana some-
body discovers that he is gay, he lives in terror. It just does not
make sense for people to have to live that kind of life in our coun-
try. That is not what our country is about.
So I do not know that he still could come and speak here today
as you have, but you represent him, and I just want to let you
know — I have seen his pain. I have seen the terror of this kina of
discrimination. I have seen what it has done to him. And I thank
you so much.
Finally, Mr. Dillon, I look forward to the day in the United
States of America, to quote a verv, very great leader in our country,
where we truly do judjze people oy the content of their character —
where we trulv do judge people by the content of their character.
That is what this legislation is about.
Thank you, Mr. Chairman.
The Chairman. Senator Kassebaum.
Senator Kassebaum. Mr. Chairman, I apologize for being late. I
was in a health care meeting, and I apologize for missing the testi-
mony. I have been looking through it and will continue to look
through it.
I certainly would agree with the Senator from Minnesota when
he says he hopes we will reach the day when it is the content of
the character that is the basis for judgement. It certainly should
be.
As the chairman knows, and others, perhaps, I have always
questioned just how much we can do by law to end intolerance, to
help us reach that point where we judge by character and not on
other factors that should not be used in judging the ability of one
to do his job and his work and take his place in society.
But that is what this hearing is about; how do we and how
should we address this issue. I very much appreciate the strength
that you have shown to come and testify this morning.
Thank you.
The Chairman. Ms. Summerville, just before you leave, let me
ask you if you have a job now, and how you support yourself and
your son?
Ms. Summerville, By doing a little bit of everything. I deliver
newspapers; in the winter time, I sell firewood; I have painted
houses. I will do anything to feed my family and keep a roof over
our heads.
The Chairman. So you are making a go of it now.
Ms. Summerville. Yes. It is not easy.
The Chairman. Good. Well, thank you. It is a very important
story that you have shared with us here today, and please let us
know if we can be helpful.
13
We want to thank this panel very, very much, and we hope you
can stay for the remainder of the hearing.
Thank you.
Ms. SuMMERViLLE. Thank you.
Mr. Dillon. Thank you.
The Chairman. Our second panel includes Justin Dart, the
former chairman of President Bush's Committee on Employment of
People with Disabilities. President Bush referred to him as one of
the strongest advocates for equal rights and equal opportunities for
all Americans, and I could not agree more. I was proud to work
with Justin, and other members of this committee, on the enact-
ment of the ADA 4 years ago this week, and we are honored that
he has once again joined us in the pursuit of full freedom for all
Americans.
Warren Phillips will give us the business perspective. Mr. Phil-
lips was the CEO and chairman of the Board at Dow Jones and
Company for more than a decade, and was also the manager editor
and publisher of The Wall Street Journal. Currently, Mr. Phillips
is on the board of trustees of Columbia University and PBS, and
he runs a publishing company. He has a wealth of experience, and
we are extremely grateful that he is able to join us this morning.
We will also near from Steve Coulter, vice president of Pacific
Bell, a company with thousands of employees, serving millions of
residents of^California. Mr. Coulter is here to bring us his compa-
ny's endorsement of this Act and to share with us their corporate
philosophy. PacBell has had a nondiscrimination policy which in-
cludes sexual orientation in place for more than a aecade. Mr.
Coulter, we are glad to have you.
Finally, we welcome Richard Womack, who is director of civil
rights at the AFL-CIO, the labor movement, and the AFL in par-
ticular, and has been on the front lines of the struggle for equal
opportunity. Since the very beginning, the AFL has oeen there to
ensure that all workers have a chance to work hard £ind earn a de-
cent living. As we move to this phase of our civil rights journey,
we are pleased to once again have Mr. Womack with us.
Justin, do you want to begin? We would be glad to hear from
you.
STATEMENTS OF JUSTIN DART, JR., CHAIRMAN, PRESIDENT
BUSH'S COMMITTEE ON EMPLOYMENT OF PEOPLE WITH
DISABILITIES; WARREN PHILLIPS, FORMER PUBLISHER,
THE WALL STREET JOURNAL, AND FORMER CEO AND
CHAIRMAN, DOW JONES & COMPANY, INC^ STEVEN
COULTER, VICE PRESIDENT, PACIFIC BELL; AND RICHARD
WOMACK, DIRECTOR OF CIVIL RIGHTS, AFL-CIO
Mr. Dart. Mr. Chairman, it is sm honor to appear before your
committoe today. As a Republican, as a former businessman, as a
lifelong disability rights advocate, I call on the Members of Con-
gress to pass and the President to sign the Employment Non-Dis-
crimination Act of 1994. I call on all who love the American dream
to support it.
Why am I, a disability rights advocate who is not gay, supporting
this bill on sexual orientation?
14
Because millions of people with disabilities are gay and lesbian;
because some of the greatest human beings I know are gays and
lesbians who have made monumental contributions to my life, to
my family, to my prosperity, and to my happiness — Pat Wright,
here in this room, the mother of the Americans with Disabilities
Act. I could not live with my conscience if I denied their call for
simple justice,
I am here today because what Martin Luther King said is pro-
foundly true: "Injustice anywhere is a threat to justice every-
where."
Effective protection of the right and responsibility to be produc-
tive is a foundational component of successful humcui culture. The
productivity of each is essential to the prosperity of all. I have a
vested personal interest in ensuring the maximal freedom and pro-
ductivity of every person.
Mr. Chairman, as a wheelchair user for 46 years, I know about
stereotypes and discrimination. Although I was an honor student
in the field of education at the University of Houston, I was in
1954 denied a Texas teaching certificate because of my disability.
And I have been denied scores of iobs since that time.
As a young man, I borrowed the down payment to buy a Sears
Roebuck car so that I could deliver Houston Chronicle newspapers
for 2 cents gross profit each, because that was the only pob I could
get. Later, 1 went deeply into debt to found small busmesses be-
cause there was no other way to get a job.
My younger brother Peter was a top Air Force jet pilot and a
degreed engineer when he was disabled by polio in the late 1950's.
He struggled for more than 2 decades against overwhelmingly hos-
tile attitudes. He too had problems finding employment. Finally, 6
years ago, no longer able to bear the pain of rejection by his be-
loved Nation, unwilling to accept dependency, he took his own life.
Tens of millions of my colleagues with disabilities have suffered
the same rejection, with devastating results for the economy and
for the quality of life in this Nation. President Bush estimated that
it cost this Nation almost $200 billion annually to exclude people
with disabilities from the productive mainstream. The human cost
is beyond express in numbers or words.
That is why it was absolutely essential to pass the historic Amer-
icans with Disabilities Act of 1990. For the same kinds of reasons,
the time has come to protect the basic rights of persons who are
oppressed because of their sexual orientation.
In many ways, discrimination against gay and lesbian people is
more vicious and violent than that suffered by people with disabil-
ities. And you have heard the eloquent and moving testimony of
Ms. Summerville and Mr. Dillon.
This discrimination is so pervasive and so intimidating that I do
not feel at liberty to cite examples within my knowledge without
permission from the individuals involved.
Mr. Chairman, historically, there has been opposition to civil
rights. There is the assertion that civil rights is a kind of bother-
some burden that do-gooders impose on sound business and sound
Government, and Mr. Chairman, this is a dangerous fallacy.
Civil rights and free enterprise are two sides of the same solid
gold cultural currency that has revolutionized the productivity and
15
the quality of human Hfe. Our forefathers and mothers came to this
country because we offered extraordinary legal guarantees of equal
opportunity. They got rich, and America got rich. And every time
we expanded those civil rights guarantees to include another op-
pressed minority, Americans got richer, and America became more
democratic.
Civil rights puts the "free" in free enterprise. America is not rich
in spite of civil rights. America is rich because of civil rights.
Mr. Chairman, some folks claim that civil rights laws are legiti-
mate only in the areas of race, religion, and gender — and maybe
disability. They claim that it is immoral to be gay or lesbian, and
that it is okay to deny jobs to hardworking Americans because of
who they love. Mr. Chairman, nothing is wrong with denouncing
that which you believe to be immoral. Everything is wrong with ac-
quiescing in vicious discrimination against American citizens be-
cause you disagree with their personal views and activities, activi-
ties which in no way infringe on the rights of others.
Mr. Chairman, when Thomas Jefferson wrote that all people are
endowed by their creator with certain inalienable rights, he did not
say "except for gay and lesbian people." Bigotry is bigotry. Bigotry
is a cancer on culture that threatens all. Bigotry against gays and
lesbians is un-American. It is personally obnoxious to me, and
frankly, I think it is obnoxious to God.
Now, Mr. Chairman, there is the matter of family values. Is
there a higher family value than the right, indeed, the responsibil-
ity, to work, to be all that one can be, openly, proudly, in the sun-
shine of the American dream? Is there a higher family value than
that most profound love which commands mother and father, son
and daughter, brother and sister, to nurture and to support each
other in spite of all differences?
The gay and lesbian people I know are not amoral aliens from
another plant. They are solid, hardworking, committed, and caring
people. They hold my family values. Eventually, every family in the
United States will have one or more members whose basic rights
will be protected by this antidiscrimination act. This is not a law
for somebody else. This is not a law for "them." This is a law for
us, all of us. , , , 1 ^
The Non-Discrimination Act of 1994 will be another landmark of
justice in the great tradition of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1967, the Rehabilitation
Act of 1973, the ADA, and the Civil Rights Act of 1991. It will
produce profits that will reduce public deficits and enrich business.
It will enrich every citizen in terms of money and quality of life.
Finally, Mr. Chairman, there are no words to tell you how proud
I am of America and of each one of you who supported the Ameri-
cans with Disabilities Act. There are no words to tell me what it
means to me and to milHons of Americans with disabilities to be
legally recognized as American citizens, as human beings.
You personally, Mr. Chairman, and many members of your com-
mittee, demonstrated authentic profiles in courage — Senator Har-
kin, the father of the ADA; Senator Metzenbaum and Senator
Kassebaum, here today; Senators Durenberger, Simon, Hatch, Jef-
fords, Thurmond, Dodd, Coats, Mikulski. I am proud of all of you.
Senator Metzenbaum. Do not forget Kennedy.
16
The Chairman. Keep me in mind there. [Laughter.]
Mr. Dart. Let us once again rise above politics as usual and set
our eyes on love and justice. Let us once again provide profiles in
courage. Let us join together, Republicans, Democrats, and just
f)lain Americans, to support the passage of this just and necessary
aw and then to implement it in every heart and mind and commu-
nity in America. It is the profitable and the productive thing to do.
It is the right thing to do. We will keep the sacred pledge of liberty
and justice for all.
Together — only together — we shall overcome.
The Chairman. Thank you very much, Mr, Dart, for a very elo-
quent and compelling statement.
[The prepared statement of Mr. Dart follows:]
Prepared Statement of Mr. Dart
Mr. Chairman, it is an honor to appear before your committee today.
As a Republican, as a former businessman, as a life long disabibty rights advo-
cate, I call on the members of Congress to pass and the President to sign the Em-
ployment Non-Discrimination Act of 1994. I call on all who love the American dream
to support it.
Why am I, a disability rights advocate who is not gay, supporting this bill on sex-
ual orientation?
Because millions of people with disabilities are gay and lesbian.
Becau^ some of the greatest human bein^ I know are gays and lesbians who
have made monumental contributions to my hfe, to my family, to my prosperity and
to my happiness. I could not live with my conscience if I denied their caU for simple
justice.
I am here today, because what Martin Luther King said is profoundly true, ^r^ju8-
tice anywhere is a threat to justice everywhere."
Effective protection of the rirfit and responsibility to be productive is a
foundational component of successful human culture. The productivity of each is es-
sential to the prosperity of all. I have a vested personal interest in ensuring the
maximal freedom and productivity of every person.
Mr. Chairman, as a wheel chair user for 46 years I know about stereotjrpes and
discrimination. Although I was an honor student in the field of education at the
University of Houston, I was, in 1954, denied a Texas teaching certificate because
of my disability. I have been denied scores of jobs since that time.
As a young man I borrowed the down payment to buy a Sears Roebuck car so
that I could deliver Houston Chronicle newspapers for 2 cents gross profit each.
Later I went deeply in debt to found small businesses because there was no other
way to get a job.
My younger brother Peter was a top air force jet pilot and a degreed engineer
when he was disabled by polio, in the late fifties, he struggled for more than two
decades against overwhelrning hostile attitudes. He too haa problems finding em-
ployment. Finally, 6 years ago, no longer able to bear the pain of rejection by his
beloved Nation, unwilling to accept dependency, he took his own life.
Tens of millions of my colleagues with disabilities have suffered the same rejec-
tion, with devastating results for the economy and the quality of life of the Nation.
President Bush estimated that it cost this Nation almost $200 billion annually to
exclude people with disabilities from the productive mainstream. The human cost
is beyond expression in numbers or words.
That is why it was absolutely essential to pass the historic Americans with Dis-
abilities Act of 1990.
For the same kinds of reasons, the time has come to protect the basic rights of
persons who are oppressed because of their sexual orientations, in many ways dis-
crimination against gay and lesbian people is more vicious and violent than that
suffered by people with disabilities.
This discrimination is so pervasive and intimidating that I do not feel at liberty
to cite examples within my Knowledge without permission from the individuals in-
volved.
Mr. Chairman, historically, there has been opposition to civil rights. There is the
assertion that civil rights is a kind of bothersome burden that do-gooders impose
on sound business ana sound government. This is a dangerous fallacy.
17
Civil rights and free enterprise are two sides of the same solid gold cultural cur-
rency that has revolutionized^the productivity and the quality of human life.
Our forefathers and nwthers canae to this country because we offered extraor-
dinary legal guarantees of equal opportunity. They got rich and America got rich.
Every time we expanded those civil rights guarantees to include another oppressed
minority, Americans got richer, America became more democratic.
Civil rights puts the "free" in free enterprise. America is not rich in spite of civil
rights. America is rich because of civil rights. In combination with the work ethic
and an irrepressible will to live the human dream, an every expanding conscious-
ness and enforcement of civil rights forms the heart, the soul and the power of the
American heritage.
But some folks claim that civil rights laws are legitimate only in the areas of race,
religion, gender — and maybe disability. They claim that it is inmioral to be gay or
lesbian, and that it is OK to deny jobs to hard working Americans because of who
they love. Nothing is wrong with denouncing that which you believe to be immoral.
Everything is wrong with acquiescing in vicious discrimination against American
citizens just because you disagree with their personal views and activities — activi-
ties which in no way infringe the rights of others.
Then there is the matter of family values. Is there a higher family value than
the right, indeed the responsibility to work, to be all that one can be, opnly, proud-
ly in the sunshine of the Americam dream? Is there a higher family value than that
most profound love which commands mother and father, son and daughter, brother
and sister to nurture and support each other, in spite of aU differences?
The gay and lesbian people I know are not amoral aliens from another planet.
They are solid, hard working, committed and caring people. They hold my family
values.
Eventually every family in the United States wUl have one or more members
whose basic rights will be protected by this antidiscrimination act. This is not a law
for somebody else — for "them." This is a law for us. All of us.
The Non-Discrimination Act of 1994 will be another landmark of justice in the
great tradition of the Civil Rights Act of 1964, the Age Discrimination in Employ-
ment Act of 1967, the Rehabilitation Act of 1973, the ADA and the Civil Rights Act
of 1991. It will produce profits that will reduce public deficits. It will enrich every
citizen in terms of money and of quality of life.
Mr. Chairman, many years ago President Eisenhower appointed a blue ribbon
commission on goals for Americans. Persons of my age will recognize the names of
the members ofthat commission: Canham, Conant, Darden Greenwalt, Gruenther,
Hand, Kerr, Killian, Meany, Pace and Wriston. Their report stated:
The paramount goal of the United States was set long ago. It is to guard the
rights of the individual, to ensure his development, and to enlarge his opportunity.
Our enduring aim is to build a nation and help build a world in which every human
being shall be free to develop his capacities to the fullest. We must rededicate our-
selves to this principle and thereby strengthen its appeal to a world in political, so-
cial, economic, and technological revolution.
Abraham Lincoln sad this: I have often inquired of myself, what great principle or
idea it was that kept this Confederacy so long together. It was not the mere matter
of the separation of the colonies from the motherland; but something in that Dec-
laration giving liberty, not alone to the people of this country, but hope to the world
for all future time. It was that which gave promise that in due time the weights
should be lifted from the shoulders of all men, and that all should have an equal
chance. This is the sentiment embodied in that Declaration of Independence.
FDR said, "The power of love is always greater than the power of hate."
Finally, Mr. Chairman, there are no words to tell you how proud I am of America,
and of each one of you who supported the ADA. There are no words to tell vou what
it means to me and to millions of Americans with disabilities to be legally recog-
nized as American citizens, as human beings.
You personally Mr. Chairman, and many members of your committee dem-
onstrated authentic profiles in courage. Senator Harkin, the father of the ADA. Sen-
ators Durenberger, Sinwn, Hatch, Jeffords, Metzenbaum, Thurmond, Dodd, Coats,
and Mikulski.
Let us once again rise above politics as usual and set our eyes on love and justice.
Let us once again provide profiles in courage.
let us join together. Republicans, Democrats, just plain Americans, to support the
p£i8sage of this just and necessary law, and then to implement it in every heart and
mind and conmiunity in America. It's the profitable, the productive thing to do. it's
the right thing to do. We will keep the sacred pledge of liberty and justice for all.
Together, we shall overcome.
18
Senator Metzenbaum. Mr. Chairman, I am going to have to
leave, but could I just say one word?
The Chairman. Fine.
Senator Metzeitbaum. Mr. Dart, I just want to sav that I have
seen you around here for a long time, and I have worked with you,
and you are a damn good citizen. You are gutsy citizen, and I am
just so proud that we are on the same side on so many issues, al-
though we differ on some others. But I think that you have guts,
and you are a stand-up and a speak-out guy, and I just want to
say so publicly.
Mr. Dart. Thank you.
The Chairman. Thank you.
Mr. Phillips, we look forward to your comments.
Mr. Phillips. Thank you, Senator.
Mr. Chairman, Senator Kassebaum, good morning. My name is
Warren Phillips. I was the chief executive officer of Dow Jones &
Company for 15 years and also the publisher of The Wall Street
Journal during that period, until the middle of 1991, when I retired
at age 65.
Today, my wife and I run a very small business called Bridge
Works. Publishing Company, which publishes books, some fiction
and some nonfiction.
I thank you very much for permitting me to appear before your
committee this morning in support of the Employment Non-Dis-
crimination Act of 1994.
Dow Jones employs 10,000 people, and a large part of its busi-
ness is publishing newspapers. The Wall Street Journal is the best
known, but it also publishes newspapers, as the Senator knows, in
New Bedford and Cape Cod, also in Mankato, MN, Medford, OR,
and a number of other places.
About half of our business these days is electronic publishing, the
computerized delivery of information, and on both the print side
and the electronic side, a little more than 25 percent of our busi-
ness is international.
Like most businesses, it is dependent on brains, talent, and cre-
ativity. It would self-defeating for us, and self-defeating for Amer-
ican business generally in these competitive times, to limit the tal-
ent pool because of prejudice. Morally wrong, yes, but also poor
business for us and for die country.
There are many editors I have known, writers, salespeople and
others whom I have worked with over the years, both inside and
outside Dow Jones, who have made superb contributions to the im-
provement and growth and quality of The Journal and other pub-
lishing enterprises — and some of these people happen to be gay and
lesbian. The same can be said for talented gays and lesbians in our
electronic divisions.
Even in the small business that my wife and I operate today, one
of the five books we are publishing this year is a novel by a won-
derfully lyrical writer, Kristina McGrath, who happens to be les-
bian. The advance reviews of the book, entitled "House Work,"
which comes out in September — remember that — ^in the trade press
have hailed her work as "flecked with brilliant, a domestic drama
in the noblest, most wistful sense."
19
In my early years at The Wall Street Journal and Dow Jones, I
was a correspondent in Grermany. I covered the Berlin blockade
and airlift, and I used to fly into the city on those old C47s that
would leave the Rhein-Main Air Base every 30 seconds like clock-
work, loaded with coal to sustain the beleaguered people of Berlin,
flying into Berlin's Templehof airdrome in those days. I witnessed
first-hand then, and in later years also, the response of our country
and our allies to threats to individual freedom.
On the other side of the world, I once reported from and wrote
a book on China, and I saw the cost in that society also of persecut-
ing people because they were different.
My own father and my mother's familv were immigrants to this
country, fleeing societies that persecuted them for being different.
Thus I have strong personal as well as professional reasons for
supporting legislation designed to strengthen and expand our soci-
ety's fundamental bedrock principle of being intolerant of intoler-
ance.
I was at Dow Jones for 44 years in a wide variety of positions
and locations, and I never saw a correlation between ability on the
one hand, and on the other hand, race, or gender, or religion, or
sexual orientation.
Our policy has been and is not to discriminate. My successor as
chairman and CEO of Dow Jones, Peter Kann, restated that policy
not long ago in the company-wide newsletter, and I quote: "I hope
it is clear to everyone in the company that we consider it unaccept-
able to discriminate in our workplace ag£iinst any colleague, other
than to distinguish among individuals on the basis of job perform-
ance." He went on to that that that certainly covers discrimination
on the basis of sexual orientation. "Prejudice does not belong in our
workplace; talented people do," he said.
Today, more than one-fourth of the Fortune 500 companies —
companies as diverse as Xerox, Boeing, RJ Reynolds, Chevron,
Kodak — ^have explicit policies prohibiting discrimination based on
sexual orientation. And since 1990, the number of corporations
with such policies has tripled.
The increasing number of companies with nondiscrimination poli-
cies which include sexual orientation shows that real change is oc-
curring in corporate America, and this chsinge goes beyond simply
large corporations. Smaller firms, such as Trek Bicycle, Fidelity
Federal Bank of Glendale, CA, and the insurance company, John-
son & Higgins, have also moved forward with adopting inclusive
nondiscrimination policies.
But while a growing number of businesses have adopted these
policies, most gay and lesbian employees in the corporate American
work force remain unprotected still. This lack of protection leaves
a gaping hole in America's commitment to equal opportunity and
is an invitation to the perpetuation of prejudice and stereotypes.
This bill, in my belief, supports business by helping to create an
environment where all workers can produce and excel. This bill
supports business by taking a tailored approach that does not re-
quire the provision of partner benefits, does not force a business to
defend neutral practices which may have a disproportionate impact
based on sexual orientation, and it specifically prohibits affirmative
20
action and quotas. This bill is about fairness, and I think it is more
than fairly crafted.
It has been the law of the land that employment discrimination
is unacceptable based on race, gender, religion, ethnic origin, or
other nonperformance-related considerations. It is time to include
sexual orientation. It is the right thing to do. It is the sensible
thing to do. And it also is the businesslike thing to do.
The Chairman. Thank you.
Let me ask you, Mr. Phillips, for how many years has that been
the policy of the company?
Mr. Phillips. It has been an unwritten policy for — I cannot re-
member how far back — ^but we have always had very talented gay
editors and writers. There were periods in the past, and I was
present for some of them, where I remember there would be discus-
sions about a person's gayness just as I also remember far enough
back it was a problem with age, or when there were discussions
about how could you send a woman report in to interview the CEO
of this company, or how could you send a woman sales representa-
tive in to sell a businessperson. And there were discussions about
gayness, also. So I could not put an exact year, but it goes back
a ways.
The Chairman. OK That is fine. Thank you.
Mr. Coulter.
Mr. Coulter. Senator Kennedy, Senator Kassebaum, Senator
Wellstone, my name is Steve Coulter. I am a vice president with
Pacific Bell.
On the issue before us today, I was asked to present both my
personal experience as a businessman as well as my company's po-
sition. I am pleased to say that we share the vision of Senator Ken-
nedy, Senator Chafee and others of a workplace free of discrimina-
tion. We think it is just good business.
Pacific Bell is a subsidiary of Pacific Telesis Group, one of the so-
called Baby Bells. It is a California firm, with over 52,000 employ-
ees. We serve 10 million customers. Last year, it had $9 billion in
revenue and assets of about $23 billion. Its markets and employees
reflect the diversity that is California.
As a telecommunications company, we reach out to everyone.
Five months ago, we annoimced a program to bring state-of-the-art
telephony to every public library, public school and community col-
lege within 3 years. Two months ago, we started rewiring every
residence we serve in California, a $16 billion project to bring home
the information superhighway.
Pacific Bell has had a policy in place prohibiting discrimination
against gays and lesbians since 1981. The company seeks to value
diversity. It was not always so. There was a time when the com-
pany did not appreciate differences. There was a time when it pre-
ferred seeing the world as it wanted it to be, rather than as it was.
But the company eventually opened its eyes, learned, and came
to terms with its environment. And Pacific Bell is, I believe, a bet-
ter business because of it.
Today, 70 percent of the company's work force are women and
minorities. Twenty or more years ago, most of the women in our
company were operators; very few were in management. Today,
21
over half the work force and half the management team are
women, with a third at senior levels.
Thirty percent of the Asians in the entire U.S. telecommuni-
cations industry work for one California Corporation — Pacific Bell;
23 percent of all Hispanics; African Americans make up 6 percent
of tne California work force and 14 percent of the Pacific Bell work
force. Pacific Bell has a large number of gay and lesbian employees
and customers. We provide service in six languages — one of the
largest programs of its kind in America. We spend half a billion
dollars a year with women and minority vendors.
In short, Pacific Bell has invested in diversity and believes it
works. PacBell may be the most diverse major corporation in the
Nation's most diverse State.
Our company is committed to pursuing sound business strategies
which build on a strong economic and social foundation. Non-dis-
crimination, and the next step, valuing a diverse employee body, is
good business.
The legislation we are discussing today is just plciin common
sense. It is not an added burden. It is not a significant added ex-
pense. It reflects our values as a business.
I believe that a manager who cannot tolerate, cannot respect the
diversity of the human family, is probably not a very good man-
ager. Management is more than crunching numbers. It is motivat-
ing people to give their best.
My experience is that you motivate people more by lifting them
up, not putting them down. If employees are afraid to be nonest
about who they are, if people are forced to build corporate closets,
then they are using their energy and creativity for self-preservation
rather than making the business more profitable.
There are those who say tolerance is too great a burden. I hope
we face them as competitors. If you can capture the talents of a di-
verse work force and reach out to a diverse population, you have
a powerful competitive edge. Fairness is not burden; it is an advan-
tage.
No company is perfectly; certainly not PacBell. But it makes an
eflFort. All companies should. A growing number of States, localities
and businesses now prohibit job discrimination based on sexual ori-
entation. When I learned that in 42 States, it is still legal to fire
someone because he or she is gay or lesbian, I was frankly shocked.
That is wrong, and a key reason why I am here today before you.
This bill is very narrowly drawn. No special privileges. No
quotas. Religious groups, small businesses and the military are ex-
empt. It fits easily within our own way of working, and it brings
uniformity to the law.
Pacific Telesis Group and Pacific Bell support this legislation. It
is good public policy and good business. It is also the right thing
to do.
Thank you.
The Chairman. I want to commend both of you — we kind of ex-
pect it of the AFL. We will put in the record other letters of strong
support. I think you really make a difference. When we are able
to get this kind of support coming from various different vantage
points, it is a very powerful force. I think you and your company
deserve a lot of credit.
22
We will include letters from Xerox, Microsoft, AT&T, Honeywell
and Borland International. I think it is important that we in the
Congress know, and the American people and our constituents
know, that much of the corporate leadership out there is working
to knock down these barriers. So we are very, very grateful to you.
[The letters referred to appear at the end of the hearing record.]
The Chairman. Richard Womack, we are glad to have you here,
we look forward to your testimony, and appreciate the leadership
of the AFL in this area as well.
Mr. Womack. Thank you, Mr. Chainnan, and other members of
the committee, for having me here this morning.
My name is Richard Womack, and I am the director of the de-
partment of civil rights for the AFL-CIO. It may not be apparent
to all, but let me State for the record: I am a black man, a black
man who has faced discrimination, bigotry, hatred, and yes, even
bias. I know the suffering, and I know the pain. So I think it is
incumbent that we participate in these hearings and support S.
2238.
By resolution of our convention, the AFL-CIO has stated that it
is long past due for the passage of such legislation, the Employ-
ment 5jon-Discrimination Act prohibiting discrimination in employ-
ment based on one's sexual orientation.
The AFL-CIO is comprised of 80 affiliated national unions, with
a membership of over 14 million. I think that speaks well in terms
of what it is we do in terms of workers. Historically, the AFL-CIO
has been a strong supporter of civil rights legislation prohibiting
discrimination in many areas — ^voting, nousing, and yes, even in
terms of other areas that we see pertinent in the workplace.
I think it also goes to the point of sex, religion, and people with
disabilities. We have been in the forefront of those fights. It was
then president Greorge Meany who then insisted that we have a
Title VII in the Civil Rights Act of 1964 which prohibits discrimi-
nation based on race, sex, creed, and national origin. It was the
labor movement who said we should punish wrongdoing within our
own ranks, and yes, even in our society.
So it is not hypocritical for us to come here today and say that
we support this legislation to prohibit wrongdoing for people who
have an urge to express their sexual preference. It is a fundamen-
tal principle of the AFL-CIO that civil rights be extended to all of
our citizens in a democratic society.
Support of the Employment Non-Discrimination Act of 1994 is
part of our commitment to that principle. We believe that it is the
responsibility of trade unions to guarantee that their workers be
judged on their work and not by criteria that are not job-related.
Dismissal, harassment, £ind intimidation of workers for reasons un-
related to job performance is an employer tactic well-known to the
labor movement. We protect any action against a worker solely on
the basis of sexual orientation, and we support legislation at all
levels of Government to guarantee the civil rights of all persons
without regard to sexual orientation in public and private employ-
ment.
When an Arizona judge rules that "an employee is not wrongfully
terminated because he is fired for being gay," then it is time to
23
change the law. When an employer dismisses an employee because
that employee is a lesbian, then it is time to change the law.
If that law were changed, then the Cheryl Summervillesj yes,
and the Ernest Dillons, would not have to work in fear, would not
be intimidated or harassed. We need this law.
Let me just say this to all of us. It is time to stop blatant work-
place discrimination. Workers in many occupations have been fired
and continue to be fired because they are gay or lesbian. In the
workplace, the AFL-CIO believes people should be judged on their
work, not on their religious preference, not on their race, not on
their national origin, and certainly not on their gender.
Discrimination or firing someone for those reasons is against the
law. Workers should not live in fear of losing their jobs or being
denied promotions because of their sexual orientation. That also
should be against the law.
We congratulate Senator Kennedy and Senator Chafee and all
the cosponsors of S. 2238 for their leadership in introducing this
legislation. The proposed legislation is straightforward and consist-
ent with antidiscrimination provisions and legislation which protect
minorities, women, people with disabilities, and ves, even seniors.
The bill also contains, as many people have already said, provisions
which prohibit quotas and preferential treatment. And it does not
require an employer to provide benefits for the same sex partner
of the employee.
This is something that many of our unions have collectively bar-
gained for, and they will continue to do so. Violence motivated by
racial, homosexual, religious, and ethnic hatred is repugnant to the
American ideal of equality. That such acts persist, even flourish, is
a reproach to each of us and a symptom of what I call a serious
failure within our Federal and State systems of justice. We must
correct this by making sure that we enact S. 2238.
Again, we firmly support this legislation, believing that employ-
ment decisions should be made on the basis of an individual's abil-
ity to perform his or her job. Recent polls have shown that three-
fourths of the American people believe that there should not be this
kind of discrimination in the workplace. This legislation is long
overdue. Eight States have so stated, and many localities have
adopted this kind of legislation. It is time that the Federal Govern-
ment act to enact such legislation.
We look forward to working with you to ensure that S. 2238 is
passed by Congress and signed by the President, granting legal
protection from employment discrimination to persons who have
been historically denied equal opportunity in the workplace.
It bears repeating that this is a matter of fairness and simple
justice. Gays and lesbian Americans do not want to be ushered in
secretly through the servants' entrance; they want to walk through
the front door. For all of its self-declared greatness, the United
States should be ashamed of the enormity of discrimination that
pervades throughout it.
If you are homosexual, a woman, a person with a disability or
a minority, you are forced to fight with whole heart and soul for
rights that should be a given. Some institutions, and yes, some peo-
ple, who are consumed with unfounded anger and hatred — un-
founded, I say — ^toward harmless individuals have become breeding
24
grounds for misinformation. Homosexuals are only targets of ha-
tred from obtuse ignorance.
Let me close by saying that I have with me a statement that has
been signed by numerous of our unions that I would like to enter
for the record.
Thank you for having us, and we will support you in this effort.
[The prepared statement of Mr. Womack appears at the end of
the hearing record.]
The Chairman. Thank you very much. We will include the state-
ment in the record, as well as statements from Deval Patrick, the
Assistant Attorney General for Civil Rights; Senator Chafee; Sen-
ator Groldwater; the Reverend Edmund Browning, the presiding
Bishop of the Episcopalian Church; Coretta Scott King; Mary
Frances Barry, who is chair of the U.S. Civil Rights Commission;
and Anthony Carnevale, chairman of the National Commission on
Employment Policy.
[The prepared statements referred to appear at the end of the
hearing record.]
The Chairman. I have no questions, and I am going to ask Sen-
ator Wellstone to chair the remainder of the hearing. As you prob-
ably know, we are in the process of consideration of Judge Breyer
for the" U.S. Supreme Court, and I will have to be in attendance
over on the floor, so Senator Wellstone will chair the remainder of
the hearing.
I thank all of you, and I want to give the other witnesses my as-
surance that I look forward to reviewing their testimony.
Senator Wellstone. [presiding]. Thank you, Mr. Chairman.
Let me first ask Senator Kassebaum if she has any questions of
the panel.
Senator Kassebaum. Yes, I have a few. First, I would just say
how much I appreciate everyone's testimony. I think it speaks to
the importance of the business community, as spoken to by both
Mr. Phillips and Mr. Coulter, and the AFL-CIO, I might add, to
take a leading position on their own, without legislation.
I think there is no one who would question the importance of
having a workplace free of discrimination. It helps to have a policy.
I would ask you, Mr. Coulter — ^you do not ask someone, of course,
whether he or she is gay or lesbian. I mean, how do you know for
sure your workplace is as free as possible of aiscrimination?
Mr. Coulter. Well, we have had the policy in place since 1981.
If someone has a problem, thev take it to their supervisor. Even
with a policy in place, we have had problems periodically. The com-
pany created a gay and lesbian employee group, GALEMAS — the
employees did it on their own — and when it first came out about
4 years ago, there was harassment. Some of their posters were torn
down, they got some obscene calls on their voice mail number. And
they went to their supervisors, and we managed to trace back the
group where the messages were coming from, we figured, and the
boss basically pulled his staff together and said, "I do not know
who is doing this, but knock it off. This is not the way we operate
as a business. And if I ever catch anybody doing this, you are out."
You do not know who is gay or lesbian. We do not care. All we
care about is the quality of your work. But if there is a problem,
there is a rule in place, ana we support it, the top management.
25
Senatx)r Kassebaum. That is what is important, to have the ave-
nue to do so if someone accuses you discrimination. If they have
been fired, you can then make the case that your poHcy is one that
does not discriminate, and so the reason they may have been termi-
nated is purely based on job performance.
Mr. Coulter. Right. Creating an unhealthful discriminatory en-
vironment could be cause for — certainly, for discipline of some sort,
not always dismissal. If it was bad enough, certainly, it could lead
to that.
Senator Kassebaum. I think, in the case of Mr. Dillon, it is un-
fortunate that he did not receive greater support from his super-
visors and his union in the workplace. I guess that would have
been the Federal employees' union since he was a postal worker.
Mr. Womack, I would like to ask you what is the AFL-CIO doing
to reach out and work with the gay and lesbian community in a
positive way in the work force?
Mr, Womack. Let me say that I think what we have tried to do —
and I think we are doing a real good job of it — is we have through-
out the United States 50 State AFL-CIOs and numerous Central
Labor Councils — in fact, I would say probably in the neighborhood
of 800 local central bodies. We have been getting them involved in
their communities, with different groups, to support their efforts,
and we have also been educating our members, because like I said,
there is a lot of misinformation out there. We have been trying to
correct that, set the record straight in terms of what our role
should be in terms of making sure that our members understand
what the issues are and how we can best deal with those issues.
We have been sitting at the bargaining table with employees,
trying to negotiate language that will protect the sexual orientation
01 people, and we have been very successful in doing that. I think
our unions are really coming around, and that is why I wanted to
introduce this statement. Many of our international unions have al-
ready reached out and set up committees. We are working with the
Gay and Lesbian Task Force across this whole United States. We
have within our own ranks coalitions. We have the women's coali-
tion, the black coalition, the Hispanic coalition, even the lesbian
and gay coalition, within our own unions. So I think we are really
out there, trying to educate our members.
Senator Kassebaum. I think you have touched on something that
is important. No matter how much may be written into law, if
there is not also a gprowing understanding of tolerance and edu-
cation there will be little progress. Mr. Phillips, that leads me,
then, to the press and to the media, and the importance of under-
standing and education. I do not believe the press has done as
much as it should. This is largely because, unfortunately, we all
tend to respond to differences more than we do to good works — of
Pacific Bell, for instance. It is the clash that is shown on the
evening news, rather than the positive.
What can the press do to help with an understanding of this. Be-
cause clearly, there are some significant divisions of opinion — as
you know, Mr. Dart — even with tne disabled and their acceptance
even with the law. So a lot must come through education, and the
media plays a crucial role. I do not know that The Wall Street
Journal has necessarily made it a focus of their concern in trying
26
to help create an atmosphere of tolerance and understanding and
education.
Mr. Phillips. I think one of the things the press can do — and I
would relay this from personal experience within our own organiza-
tion— is to make sure that able people who happen to be gay or les-
bian are advanced within the organization, so the fact is, that we
have had, for instance, a page 1 editor in charge of all those stories
on pa^e 1 who is a gay man; we have had gay individuals on the
editorial page; we have had numerous writers. The current presi-
dent of the National Association of Gay and Lesbian Journalists is
a former Wall Street Journal reporter.
So the gay and lesbian reporters and writers are well-rep-
resented on the staff. Their colleagues know and work with them,
and I think that helps to create an understanding of what some of
the issues are so that you do not have people writing about these
issues who are either totally ignorant themselves, or have never
worked alongside gay and lesbian writers and editors and have an
appreciation — or lacK an appreciation — for their talents and abili-
ties.
Senator Kassebaum. I understand, and I appreciate the position
you have taken. I think it is important. I would just urge that
there is more that can be done in the way of education, because
no matter how much legislation we have, until there is a broader
understanding of gay and lesbian sexual orientation issues, it is
going to be very difficult to have tolerance and acceptance that will
lead to a creative and constructive working environment.
The absolute hatred that existed toward Mr. Dillon and Ms.
Summerville is something that everyone finds offensive. But not
just the law can help there. It really takes more than that. I think
that is where the media has a long way to go in helping to create
greater understanding.
Thank you.
Mr. Phillips. Thank you.
Senator Wellstone. Just two quick questions. First, I just want
to say to Senator Kassebaum that I think her point is so well-taken
about the importance of education. I am also thinking back to when
I was a student at the University of North Carolina during the civil
rights movement, when people were also arguing then that we can-
not do anj^hing in terms of legislation, and it just has to be edu-
cation, or it win never change — ^but the education ended up giving
people protection and really kind of ended up overturning a system
of apartheid. So in a sense, I think the two things can really work
together.
But when we get that Wall Street Journal editorial, that is when
I know we will be well on our way. That is what we are looking
for here; that is what we are looking for. I cannot wait to wake up
one morning, have my cup of coffee, and just see it — ^praise the
Lord.
Mr. Phillips. We also operate the newspaper in Mankato. How
are they doing?
Senator Wellstone. Just great. [Laughter.]
Let me just ask two quick questions, and I will start with Mr.
Dart, but each of you may want to respond. One of the arguments
that is made is that sexual orientation is different — different than
27
race or religion or gender or disability — and therefore, it does not
deserve civfl rights protection. That is one of the arguments that
is being made.
I think I will start with you, Mr. Dart, and just ask you how you
would respond to this argument, and then if the rest of you want
to as well, please do so, because I think that is part of the debate.
Mr. Dart.
Mr. Dart. Well, I do not agree with that. As I said in my testi-
mony, Mr. Jefferson did not say that we are endowed by our Cre-
ator with certain inalienable rights, excepting gays and lesbians. I
think bigotry is bigotry; bigotry is a cancer on society; bigotry is a
cancer on business and on families and on every individfual — and
I do not think it matters whether it is bigotry in regard to race or
religion or gender or sexual orientation. It has the same negative
effect on society. It has no place in America. We have got to do
something to fix it.
And Senator, I would like to comment on the previous subject,
on the matter of education, if you will, versus legislation.
Senator Wellstone. Although I do not think it is a "versus."
Mr. Dart. I do not, either. That is what I am about to say.
Senator WELLSTONE. Oh, I am sorry. I thought you were, but I
thought you would say it so well, and I would beat you to the
punch.
Mr. Dart. I believe that we have a tradition, and it is in the
mainstream of our culture, that when America comes in its con-
science and in its wisdom to the decision that it is time now to
make another great step forward to fulfill and to implement Mr.
Jefferson's great experiment, that we do this through legislation or
through Government proclamations like the Emancipation Procla-
mation, and that that is accepted in our culture as the ultimate
education. I think the Civil Rights Act of 1964 was an excellent ex-
ample. How many of us could authoritatively cite the provisions of
that law? But one thing all of us can do is we know that that law
means that henceforth, there will be no discrimination against Afri-
can Americans, Hispanics, women, people of particular religions.
And I think the greatest impact of our great civil rights laws is
educational, and I think that that cannot be separated.
Senator Wellstone. I thank you.
Let me just ask another quick question, unless somebody else
wants to respond — I want to make sure that all the panels have
a chance today. I think it was Senator Kassebaum who asked you,
Mr. Womack, about work that you have been doing with the work
force on this set of issues; but what do we do with the 75 percent
of the work force that works in companies that do not have policies
like Pacific Bell? Where is the protection for them? And I guess the
question maybe from a business point of view is does that prejudice
end up interfering with, if you will, good economic management de-
cisions? Is that the issue, that for a lot of the work force, there is
no protection?
Mr. Womack. I think you have hit the heart of the issue. The
fact is that without law, there is no protection. And let me go back
and State it a little differently, because I think Dr. King probably
said it better than anybody really could have said it. He said: "The
law may not make you love me, but it will keep you from lynching
28
me." And I think in this instance, what we are saying here is that
we need a law to stop some of this pervasiveness that takes place.
It cannot make you love me, but it will stop you from doing some
of those acts you are doing. Education is very key.
I do not think that it is sound business practice — and I think
some people rely on this, saying, "I will lose customers if I hire peo-
ple who may be lesbian or gay. That is not a proven fact.
I would also use the civil rights experience, and I can relate, be-
cause I am old enough that I have experienced some of tnese
things. When I entered the armed services, there were some people
who felt that I was much different than other folks. They put out
this misinformation that blacks somehow or other had tails, or they
were less than humans. And some folks looked around and said,
hey, you do not have one of those things that I have been talking
about, and it is that type of thing that we are talking about — edu-
cation. And I think it is very key to this whole element, letting peo-
ple understand what the issues are and how people function every
day. Just because you have one life style does not make you any
better than someone else with a different life style.
Senator Wellstone. Do either of you have a final comment, just
to bring this panel to closure? Mr. Phillips, or Mr. Coulter?
Mr. "Phillips. I would just comment that, on the argument about
how gays and lesbians will drive customers away, that argument
has been made throughout history. It was made that blacks serving
in restaurants or insurance companies would drive customers
away. It was made, as I mentioned a moment ago, within our own
company that you could not send women out to sell advertising to
male executives. It is an old argument, and it has fallen down in
each case, whether it is gender, race, handicap. In the service in-
dustries, in our company, elsewhere, no one thinks about it any-
more, and it is going to be just as short-lived in the case of gays
and lesbians, I am convinced.
Senator Wellstone. Mr. Coulter, would you like the final word?
Mr. Coulter. As a representative of a very large, very conserv-
ative, cautious corporation, I think I can say that we think the Em-
ployment Non-Discrimination Act of 1994 is a legitimate part of the
civil rights struggle and needs to be enacted.
Senator Wellstone. Thank you very much. I thank all of you.
On the third panel, we will hear first from Joseph Broadus, who
is a professor of law at George Mason University Law School. Next,
we will hear from Robert Knight, who is director of cultural affairs
at the Family Research Council. And finally, we will hear from
Chgd Feldblum, a professor at Greorgetown University Law Center.
Although you have different perspectives, each and every one of
you are welcome here, and we look forward to your testimony.
We will start with you, Mr. Broadus. Thank you for being here.
STATEMENTS OF JOSEPH E. BROADUS, GEORGE MASON
SCHOOL OF LAW; ROBERT H. KNIGHT, FAMILY RESEARCH
COUNCIL; AND CHAI FELDBLUM, GEORGETOWN UNIVERSITY
LAW CENTER, ON BEHALF OF LEADERSHIP CONFERENCE
ON CIVIL RIGHTS
Mr. Broadus. Thank you for the opportimity to be here, Mr.
Chairman.
29
There has been a great deal of talk today about how the bill will
prevent discrimination against gay citizens. But an appropriate
reading of the bill reveals that it will prohibit far more tnan that.
It will prohibit discrimination on the basis of sexual orientation,
which is defined to include identity, acts, associations.
What this means is that the bill renders irrelevant for employ-
ment purposes not just one's status, but one's behavior, and says
that whether this behavior is legal or illegal, on-the-job or oflf-the-
job, under this enactment, that t^havior is no longer relevant.
And a series of hypotheticals will quickly estaolish that, unlike
religion, unlike race, unlike national origin, unlike religion, it can-
not as easily be said that as a general proposition, or at least in
some particular cases specifically, that sexual orientation is irrele-
vant £ind that the only factor is job performance, measured to ex-
clude the sexual orientation behavior. And it is important to under-
stand that the definition of sexual orientation is so broad that it
does not just protect homosexuals and homosexual acts, but
straights and straight acts that might be presumed to be offensive.
I win give three examples that are taken from headlines about
work in both the private and public sectors which will demonstrate
why this legislation as it is written intrudes upon the capacity of
managers to m£ike sound decisions about their employees, and why
sexual orientation behavior, defined to include just about all sexual
acts by gays or straights, can be relevant to the emplojnnent situa-
tion.
I start first with a case that involves a law firm and an attorney
who was employed by that firm, who was known by that firm to
be homosexual. It did not affect either his position with the firm
or his potential for advancement. This was well-known for years,
when, after some time, what could be called behavior patterns
began to develop that were disturbing to the firm.
The first involved an incident in the firm offices where the attor-
ney was involved in an incident with a client where the client made
the allegation that he was sexually approached by the attorney.
'The firm sided with the attorney in this incident.
It was followed by three or four other incidents in which the at-
torney, away from work, was publicly involved in incidents of a sex-
ual nature that were publicized, that were embarrassing to the
firm. Still, nothing happened.
Finally, in a final incident, this attorney received widespread
publicity because of a break-in at his home. Because this was in
an exclusive area, people were very concerned about the spread of
crime into what should be safe areas, find the police acted quickly
to find the suspect. The suspect proved to be a 16-year-old boy who
was a runaway, who made the claim that he was sexually accosted
by this person.
Now, notice that this activity is away from work; it only concerns
sexual orientation; it may not have any immediate effect on, tech-
nically speaking, how this person is processing cases inside the of-
fice. But clearly, this repeated train of highly publicized activities
clearly has an effect on the standing of the firm and on the reputa-
tion of the firm and the ability of this firm to function on behalf
of its clients, and the nature of this behavior — not merely the be-
havior, but the nature of this behavior — raises questions about the
82-696 - 94 - 2
30
discretion and judgement that is employed by this person generally
in the pursuit of the activities of the client.
And it reuses £uiother question, and that is the question of what
do we mean when we say "character"? Historically, Americans have
considered sexual behavior to profoundly reflection the nature of
someone's character and the values that that person has. And
clearly, these episodes put the firm in a position where it had to
take some action to cut its losses.
A second example would be the example — again, from a recent
newspaper account— of a teacher, a female instructor, at a public
school who was, after school hours, engaged in sexual activities
with some of her students. Now, under the definition of this stat-
ute, are all of these activities defined by the statute to be irrelevant
to performance, including in these cases where the person has a
professional relationship?
Does this statute reach professional regulations which prohibit
counselors and psychologists and others fi-om having sexual activi-
ties with their clients, gay or straight, because it says that in the
workplace, this behavior is irrelevant?
Does it reach regulations of the professional bars which put limi-
tations on lawyers, gay or straight, fi-om having relationships with
their 'clients under certain circumstances, because those kinds of
relationships would only be acts or associations that manifest their
sexual orientations, gay or straight?
There clearly are many episodes and incidents in which some-
one's sexual behavior is relevant to his or her performance in a pro-
fession. There are many State regulations which provide for or reg-
ulate the sexual activities of lawyers, doctors, and others with cli-
ents and under circumstances. And this bill comes along and says,
as to sexual orientation, that it is always irrelevant to employment
decisions, and as to sexual orientation, not just defined as status
but also defined as acts and associations, that these things are al-
ways going to be irrelevant to employment decisions. The sweep of
this bill in doing that goes too far.
Another example might be the case of — ^because you talk about
the breadth of the religious exemption, and I will give you another
example of what could nappen under this bill — assume for a second
that you are a religious publishing and supply company, and you
employ a travel Bible salesman, that Bible salesman is arrestee on
the road for inappropriate sexual conduct. Can you, under this Act,
for an act which merely manifests sexual orientation, gay or
straight, deal with or discipline this person when it reflects upon
the community and character and integrity of the people you rou-
tinely deal with, and can you say, as the gentleman from PacBell
said, under that circumstance that you can expect that this will not
reflect upon your company and its product and the integrity of
what you provide for that community?
We have also been told that this bill is limited in that it will not
permit for disparate impact claim for effects claims, and that is
somewhat doubtful given the structure of the bill. The bill prohibits
the employer from implementing quota programs, and it prohibits
the courts from using disparate impact analysis in order to prove
a claim of discrimination.
31
But the language of the coercion provision of your section 12
tracks the language of section 8(a) 1 of the National Labor Relations
Act, and it is in fact 8(a) 1 which originally gave birth to effects and
disparate impact analysis. So what you will do with this bill is
what has already happened in Title VII, and that is bifurcate
claims between disparate treatment claims in which you want to
prove you have been denied an opportunity to use disparate impact
analysis, and now designate it coercion or effects claims, which will
have available statistical analysis. Worse yet, those claims will not
be limited by the defenses historically provided by disparate impact
analysis under Title VII, and as a result, it will make it even easi-
er, once they have been designated coercion claims, to proceed with
them under this bill than it would have been to proceed with a
comparable claim under Title VII.
And it is important to understand that while the language ap-
pears restrictive, the language of "coercion" and "threatens" in the
bill appears restrictive, that very similar language about "coercion"
and "restraint," in the Labor Act has been read very broadly to in-
clude a range of acts, including acts favorable to employees, that
one on the surface would not expect would produce these problems.
It cannot be said, given that history and given where this lan-
guage comes from, that this bill cannot be expected to result in a
problem with quotas.
The next problem is the relationship between the retaliation and
participation provisions and the coercion provisions. Retaliation
and participation provisions routinely found in civil rights acts
have been held to be limited to protection of lawful activities un-
dertaken in good faith, undertaken in both subjective and objective
good faith. But not so these coercion provisions that resemble 8(a) 1,
because you can compare the Labor Act prior to the addition of a
"for cause" provision with the Labor Act afterwards, and it is clear
that these will protect legal as well as illegal acts and may put in
doubt a large range of relevant
Senator Wellstone. Mr. Broadus, you need to finish up. I want-
ed you to go on, because it is a view that I do not agree with, and
therefore I did not want to cut you off at all, but we are trying to
stay within 5 minutes.
Mr. Broadus. So just to conclude, I think it cannot be said that
sexual behavior is not relevant to conclusions about character; that
there are many cases in the workplace where sex would be relevant
to professional performance, and it is important that this legisla-
tion not sweep so as to prohibit employers from regulating in those
instances.
Senator Wellstone. I wonder — we have two other lawyers
Mr. Knight. I am not a lawyer.
Senator Wellstone. [continuing]. One other lawyer who will re-
spond. I am not a lawyer, either, and that is what I was about to
say. My impression, as I read this legislation is that the conduct
rules apply evenly across the board, and maybe we will get back
to that in some of the other testimony, so I will not respond.
Since I have to preside over the Senate at 12:30, I do have to ask
you, Mr. Broadus, one question, which is important to me, and that
is why I have to ask it to you. In your testimony, you point out
32
that, quote, "homosexuals on average make plenty of money, so
why should we protect their rights." End of quote.
Mr. Broadus. That is not a quote.
Senator Wellstone. Let me find it in the testimony. Let me
read it. "These life style advantages were enjoved because gays
were much more likely to be college gpraduates. Fullv 60 percent of
gays surveyed were college gpraduates, compared witn 18 percent of
the general population. This is not the profile of a group in need
of special civil rights legislation" — that is really what I was refer-
ring to; it was not a direct quote — ^"in order to participate in the
economy or to have an opportunity to hold a decent job. It is the
profile of an elite. An elite whose insider status has permitted it
to abuse the political process in search, not of equal opportunity,
but of special privilege and public endorsement."
What is the point wiat you are making there?
Mr. Broadus. The point that I am making is that with the prior
Civil Rights Acts in the case of race, the starting point was a desire
to correct gross disparities in earning potential, gross disparities in
participation in education and participation in employment; it was
a desire to correct those disparities.
The same thing is true with the handicapped, where these dis-
parities are even greater. There, you had 50 percent of the people
not even participating in the economy. But the evidence on sexual
orientation — not the episodic evidence, but the evidence overall — is
that for the class, the income is higher, for the class, the possibility
of participating meaningfully in education, of working in the cor-
porate sector, being a manager — these things are all higher.
Why would you have — this is not
Senator Wellstone. Let me tell you why. Maybe I can answer
the question. I will not go with the methodology of this. You cite
the Simmons report as your source for both annual income and
educational level, and as I imagine you are aware, that is a study
of the readership of a gay magazine, not necessarily a representa-
tive sample.
But beyond that methodological point, when you say, "This is not
a profile of a group in need of special civil rights legislation in
order to participate in the economy or to have an opportunity to
hold a decent job," and we are talking about the issue of discrimi-
nation, as a Jew, I have a real problem with what vou say.
That is precisely the kind of argument that has been made about
Jewish people. That is precisely the kind of argument that was
probably made in Grermany. You have Jewish people, you have a
special — ^you do well — I just simply quote you — ^you are not a group
of people who need special protection. You do well economically.
You are £m elite. That is precisely the argument that has been
made in behalf of the worst kind of discrimination against Jewish
people.
What is the difference, sir?
Mr. Broadus. The difference is that the starting point for reme-
dial legislation must be or should be in sound policy process, in-
jury. In the absence of iniury, what is achieved by remedial legisla-
tion? And beyond that, tnere is still the problem of tmswering the
basic question of whether or not engaging in various kinds of sex-
ual acts, or having a propensity to do that, reflects upon character.
33
Now, only recently, the Senate passed legislation on the agri-
culture appropriation, prohibiting that Department from using its
funds to advance the notion that homosexuality was on an equal
footing with straight behavior. Only last year, the Congress took
action because it thought that homosexual orientation and behavior
was, relevant to one's performance in groups, relevant enough so
that it should affect participation in the military.
In this legislation, unlike any other civil rights legislation, you
create an exemption for religious organizations to discriminate not
on the basis of religion, but to discriminate upon the classification
that is core to the legislation, and that is an acknowledgment and
a recognition by this body that on religious grounds for those insti-
tutions and for many people, this is a relevant category. The same
thing as to the domestic partner exemption.
Senator WELLSTO^fE. Well, if you will permit me to interrupt you,
that is a very long, lawyerly-like answer to the question I put to
you. "This is not the profile of a group in need of special civil rights
legislation in order to participate in the economy or to have an op-
portunity to hold a decent job." And as a member of a group that
has economically done well and faced precisely the same kind of
discrimination, I want to tell you how much I resent that argument
that you have made.
You can say whatever you want to say. I just told you what I
want to tell you about the argument. I find it to be problematical,
at best.
Mr. Broadus. Senator, the one thing that we have always be-
lieved in America about religion is that the holding of religious
faiths — one of the reasons we protect religion, other than the prob-
lems of the disorders that you get with religious bigotry, is that we
believe religion is fundamental to helping to mold ana provide the
attributes of character that are so important to citizenship. And
this has been a long-term faith, that religion, whatever the reli-
gions that people have, contribute to the developments of character
and contribute to that person's qualities which they can then con-
tribute to the society as a whole.
Now, if you want to draw a distinction between sexual orienta-
tion and religion, you can draw it on that basis. If you can make
that same statement about sexual orientation that you can about
religion, and that basic value that underlies our protection of reli-
gion, if you can make that same statement, then you can put them
on equal footing.
Senator Wellstone. Well, that is, of course, the very question
behind this piece of legislation, which is that this legislation says
that we treat each and every citizen as being fully human and with
dignity, that we judge people based upon the content of their char-
acter, and that we do not discriminate. So I suppose that is the
premise that I accept and for which I make no apology.
But one more time, I just have to tell you — and I do not want
to take up any more time — that as an American Jevv, when I
looked at this in your testimony, it was just right there in front of
me, and I thought, my gosh, my God — that kind of argument is
precisely the kind of argument that was made by people who used
it as a justification for denying any protection for Jewish people.
That is my point.
34
We can go on. Mr. Knight.
Mr. Knight. I would like to start by pointing out that that very
same argument was made by Judge H. Jeffrey Bayless in the Colo-
rado Amendment 2 case, when he denied minority protected class
to homosexuals. He cited evidence that homosexuals do very well
economically, do not lack political clout, and it has not been proven
that homosexuality is an immutable characteristic.
So you know, if you are tossing charges of bigotry around, you
might address Judge Bayless as well. And he is no conservative. I
do not know what his religion is. He made a judgment based on
assessments by six Federal courts that ruled the same way.
So I think there is a lot of legal evidence that that is a main-
stream view that does not represent bigotry. And I know a lot of
Jews who would be offended by those comments as well. Don
Feder, the columnist for the Boston Herald, does not feel that ho-
mosexuality can be equated with his Jewishness in any way. Dan-
iel Lapin a rabbi with the Rabbinical Alliance of America — a lot
of Jews disassociate themselves entirelv from the comparison with
sexual orientation. I just thought I would State that up front.
Senator Wellstone. Well, you can
Mr. Knight. And there has been a lot of talk about family values
here, too, and I think some clarification is in order there, too, if you
would permit me
Senator Wellstone. Please.
Mr. Knight, [continuing]. Because the witnesses were compel-
ling, the people who were victims of what they said was discrimina-
tion, ^d your heart has to go out to them because they lost their
jobs — or, one of them did — and no one likes to see cruelty to any-
one. CertainW, gay-bashing is wrong, hatred is wrong. But the de-
scription of family values, basically, as a person doing his or her
job, walking their dog, that sort of thing — let us be honest — ^family
values have nothing to do with walking your dog; anybody can do
that.
These, in and of themselves, are fine things, but they can be ac-
complished by anybody, and it has nothing to do with values. Ev-
erybody from moonlighting burglars to people who enjoy group sex
could be walking their dog some night.
To define family values without mentioning sexual morality
broadens the definition to make it meaningless. Family values is
foremost about sexual morality; that is what it really means
Senator Wellstone. Mr. Knight, could I interrupt you?
Mr. Knight, [continuing]. It really means
Senator Wellstone. Could I interrupt you, not to disagree with
you, although we do not agree, but just to let you know that the
reason why I am leaving is that I have to preside
Mr. Knight. I understand. You said that already.
Senator Wellstone. But I do not want you to think I am walk-
ing out.
Mr. Knight. Oh, no, no, no.
Senator Wellstone. And they cannot find anybody to preside,
and Senator Kassebaum is going to be kind enough to chair this
committee hearing. And believe me, I want to stay, because I think
there is much more that can and should be said, and I cannot. Pre-
sumably, we will get a chance to talk more.
35
I apologize for leaving. I really do not want to appear to be impo-
lite.
Mr. Knight. That is fine. I understand completely.
Senator Wellstone. I do apologize to you.
Mr. Knight. OK Family values is about respecting marriage for
what it is. It is the bonding of one man and one woman. It is about
encouraging sexuality inside marriage and discouraging it outside
marriage, because adultery, homosexuality, and premarital sex are
harmful to individuals, families and communities.
The historical record is clear. Every culture that has abandoned
marriage and confining sex within marriage has been quickly de-
stroyed soon after they did that, in all continents and all times.
Now, the stories that we have heard are compelling. Again, no-
body likes to hear about suffering, and no one likes to inflict it. But
I have to tell you, speaking for a pro-family organization, that we
feel just as strongly about what kind of world we are creating for
our children and our families. We see the Employment Non-Dis-
crimination Act as less about tolerance than about the Federal
Government forcing acceptance of homosexuality on tens of millions
of unwilling Americans.
The bill essentially takes away the right of employers to decline
to hire or promote someone who openly acknowledges behaving, or
indulging in behavior, that the employer or the employer's cus-
tomers find immoral, unhealthy and destructive to individuals,
families and societies.
Martin Luther King has been quoted several times here, so I will
not do it again, but we believe people should be judged by the con-
tent of their character, and sexual behavior is part of character. It
is the very essence of character.
I have talked with some Jewish scholars, and they said that the
beginning of morality is sexual morality, and that is why the scrip-
tures and several religions deal with it so often.
If this bill becomes law, for the first time in history, Americans
will be told they must hire people they believe to be committing im-
moral acts precisely because they commit those immoral acts. This
interferes with freedom of association, freedom of speech, and free-
dom of religion.
The great religions of the world condemn homosexual behavior in
their scriptures. Now, the sponsors of this legislation purport to tell
Orthodox Jews, orthodox Christians — and that is lower-case "ortho-
dox," but probably also upper-case — Orthodox Muslims, of which
there are 6 million now in the United States, as well as members
of other faiths that they can no longer allow their religious beliefs
to influence their private business decisions.
The American Revolution was fought over less intrusion into the
lives of the colonists.
The bill does contain a religious exemption, it has been noted,
but for-profit activities by religious organizations are specifically
removed from that protection. It is unlikely that the religious ex-
emption could retain its strength because the courts may construe
it narrowly, removing many organizations that may in fact have a
religious viewpoint but not a specific, formal relationship with a
church.
36
The Mormon Church would be particularly vulnerable, since the
church leadership is often supported through for-profit corpora-
tions.
But other religious institutions would be put at risk since the
U.S. Supreme Court has ruled in other contexts that the beliefs
and practices of nonprofit institutions, even those connected with
religious institutions, must be in accord with Federal public policy.
Because of the bill's narrow wording regarding exemptions, insti-
tutions that could be targeted by homosexual activists include sum-
mer camps for children, the Boy Scouts of America, Christian book
stores, religious publishing houses, television and radio stations,
and of course, any business with 15 or more employees.
The recently enacted Religious Freedom Restoration Act allows
Grovemment to override religious objections of the State can prove
a compelling interest in doing so. The findings in this bill are de-
signed to do just that. They can be cited as evidence in any number
oif gay rights cases, from gay marriage to gay adoption cases.
Now, you have neard stories of discrimination, but perhaps you
should invite Brian Griggs to testify before you. He is a Seattle
businessman. Recently, a former employer of Mr. Griggs filed a
complaint of employment discrimination with the Seattle Human
Rights Department, stating that Mr. Griggs had created a hostile
work environment toward homosexuality. Mr. Griggs' crimes in-
cluded playing conservative radio talk shows in his office that car-
ried his firm's advertisements. He posted a letter from a congress-
woman regarding his inquiry about her views on gays in the mili-
tary. He also had a note on his desk, a personal note, concerning
homosexuals and adoption of children.
The former employee, who was laid off with several other em-
ployees, volunteered for a time and then left the business of his
own accord. He complained to the agency that he found Mr. Griggs'
opinions objectionable, but he acknowledges that Mr. Griggs was
not told any of this was objectionable at the time, nor that Mr. Dill
was even a homosexual.
Having had to spend several thousand dollars defending himself,
Mr. Griggs now knows first-hand what gay job discrimination laws
mean to employers.
Another former Gri^s employee, by the way, has filed an affida-
vit. He said that he is a gay man, and he never felt harassed in
any way by Mr. Griggs* actions.
This is a freedom issue. Mr. Griggs cannot even play radio shows
in his office, advertising his business, and they use gay rights laws
to slam him for it. That is what we are talking about. We are talk-
ing about Government-enforced acceptance of homosexuality, homo-
sexual-affirmative workplaces.
The bill does not contain quotas, either, or it specifically forbids
quotas. But let us be honest—in civil rights legislation often, busi-
nesses have to resort to preferential hiring for Government-ap-
proved groups in order to prove that they do not discriminate.
Quotas follow civil rights laws as surely as day follows night.
The wording of the bill is designed to accommodate much more
than a few specifically-mentioned categories, as Mr. Broadus has
pointed out. When you define orientation as real or perceived, you
open up a Pandora's box for litigious groups. Under this bill, a
37
male employee could 1 day come to work in a dress and high heels,
stating that this is now part of his identity. He is a transsexual,
and he considers it part of his homosexual orientation.
I doubt that any of the Senators would allow this type of sexual
orientation to be given free rein in their own staffs. Yet this bill,
as we see it, would open you and every other employer of 15 or
more people to harassing lawsuits.
This fits in well with the strategy advertised by homosexual ac-
tivities. I am going to quote "After the Ball," by Marshall Kirk and
Hunter Madsen, which is a candid blueprint for homosexual activ-
ism. Tou get your foot in the door by being as similar as possible;
then and only then, when your one, little difference is finally ac-
cepted, can you start dragging in your other peculiarities, one by
one. You hammer in the wedge narrow end first. As the saying
goes, allow the camel's nose beyond your tent, £md his whole body
will soon follow. The public should not be shocked and repelled by
premature exposure to homosexual behavior itself. Instead, the im-
agery of sex should be downplaved, and the issue of gay rights re-
duced as far as possible to an abstract social question. In any cam-
paign to win over the public, gays must be portrayed as victims in
need of protection so that straights will be inclined by reflex to
adopt the role of protector."
The authors ^o on and talk about how to smear religious people
who have objections to homosexuality, using various means.
Now, when any civil rights law is passed, it is addressed not to
episodic incidents of discrimination, but to whole classes. Homo-
sexuals do not qualify for this kind of protection. In fact, in a re-
cent article in "The Advocate," a national gay magazine, author Ed
Micken said: 'Today, it is rare that anyone gets fired just for being
gay — the chief reason the Cracker Barrel Restaurant case was so
sensational."
So we are talking about sweeping legislation that would affect
most workplaces in America, and even the homosexual publications
acknowledge it is really not a widespread problem. In fact, "The
Advocate" just came out with a survey, and they said, 'The major-
ity of respondents said they are mostly or completely out of the
closet, by far. This is 71 percent. Only 3 percent say they are defi-
nitely in the closet. At work, 44 percent have told their boss about
their sexual orientation, and 26 percent just assume he or she
knows. More than half say most or all of their coworkers know."
You combine this with economic data, with all due respect to Mr.
Wellstone, and you do not find an oppressed group. You find survey
after survey showing gays are far better off tnan the general popu-
lation in terms of cofiege degrees, discretionary income, frequent
flyer miles — Virtually every indicator of luxury. Gays are doing
just fine, thank you, economically.
What this whole debate is about is the central premise of wheth-
er homosexuality can be granted the same moral status as normal
sexuality. We submit at the Family Research Council that all civil
rights talk about granting homosexuals special protections rises or
falls on this concept, and we reject the equation of homosexuality
as some sort of flip side to heterosexuality. The literature is clear.
The practices of homosexualitv are well-documented in major medi-
cal journals, like "Journal of the American Medical Association,"
38
"British Medical Journal," "The Lancet," "American Journal of Pub-
lic Health."
We are talking about behavior that has resulted in more than
half the gay men in this country being HIV-positive. This is a trag-
edy that is unfolding, and the last thing you might want to do is
encourage that kind of behavior. If you have compassion for people,
you want to discourage this kind of behavior.
Employers are trying to get their employees to stop smoking.
They know it is disruptive to their behavior. They are trying to get
them to have fitness proCTams. Why would they be forced by the
Federal Government to affirm a set of behaviors that is so disrup-
tive, medically, that the books are full of it? This outrageous on the
part of the Federal Government and represents an intrusion that,
when the American people find out about it, will be outraged as
well.
Senator Kassebaum. Thank you, Mr. Knight.
Mr. Knight. Thank you.
[The prepared statement of Mr. Knight appears at the end of the
hearing record.]
Senator Kassebaum. Ms. Feldblum, who is from the Georgetown
University Law Center.
Ms.'Feldblum.
Ms. Feldblum. Thank you, Senator Kassebaum. My name is
Chai Feldblum. I am an associate professor of law at Georgetown
University Law Center, where I direct the Federal Legislation Clin-
ic and where I teach legislation, disability law, and sexual orienta-
tion and the law. And I am looking forward to testifying here today
and specifically to respond to some of the concerns that you have
just heard raised,
I am pleased to testify here today on behalf of the Leadership
Conference on Civil Rights, which is the Nation's oldest, largest,
and most broad-based coalition, and for 44 years, has been the leg-
islative arm of the civil rights movement. As part of my work with
the Leadership Conference, and as a legal consultant for the
Human Rights Campaign Fund, I have worked on the issue of em-
ployment discrimination on the basis of sexual orientation and spe-
cifically on the Employment Non-Discrimination Act of 1994.
S. 2238, the Employment Non -Discrimination Act, is a critical
piece of legislation. You have heard the compelling stories of dis-
crimination of Ernest and Cheryl. You have heard Mr. Knight say
that in fact, these are compelling stories.
Cheryl and Ernest are not alone. There are thousands of untold
stories of discrimination on the basis of sexual orientation. The
Employment Non -Discrimination Act will provide legal recourse for
these individuals.
Congress appropriately passes anti-discrimination laws when
there is a problem of discrimination against an identifiable group
of people. That is the standard that Congress should use. That is
the policy standard.
Evidence of such discrimination was evident in 1964, when Con-
gress passed the Civil Rights Act of 1964. Evidence of such dis-
crimination was evident in 1967, when Congress passed the Age
Discrimination in Employment Act. And evidence of such discrimi-
39
nation was evident in 1990, when Congress passed the Americans
with Disabilities Act.
Evidence of such discrimination on the basis of sexual orientation
is present today.
Three lengthy appendices to my testimony document this. One
appendix describes 50 cases of employment discrimination that
have made it to the Federal courts and have resulted in judicial de-
cisions. The second appendix lists 800 complaints that have been
filed over the past 5 years, in 6 of the 8 States that currently have
sexual orientation discrimination laws. And a third appendix lists
and describes cases of personal discrimination that the Human
Rights Campaign Fund has documented just over the past few
months.
[The appendices referred to appear at the end of the hearing
record.]
Ms. Feldblum. Mr. Knight just said, but in "The Advocate," a
gay paper, the person says that today it is rare that anyone gets
fired for being gay.
Do you know what that article is that he was quoting from? The
article is someone responding to a question that was written in
that asked, "Can I come out at work and be secure?" which is a
question that a lot of gay people have.
And this person is writing back and saying, "The only sure-fire
protection any of us has is self-confidence. But let me add that I
have spoken with many lesbians and gay men who have come out
on the job voluntarily, and few regret that choice. That does not
mean they did not have to face some unpleasant circumstances, in-
cluding discrimination or harassment. Yet all s^ that fears were
worse than what they actually encountered and agreed that the
benefits outweigh the liabilities."
Then he goes on to say, "Some employers have nondiscrimination
policies, and it is important to try to get those." Then he says,
^oday, it is rare that anyone gets fireajust for being gay. Those
who are putting up with harassment discrimination, such as
thwarted promotions or an otherwise oppressive atmosphere, still
have two powerful options — to raise hen — all employers hate pub-
licity— or, perhaps more eloquent, just to leave. Get a better job at
a place that appreciates you. They are out there."
This person is not saying that there is not discrimination against
gay people. This person is saying what I say to people when they
ask me: Can I be out at my job? I mean, they look at me — I am
an "out" lesbian at Georgetown University Law Center — and they
ask: Can I do that, too?
And I say to them: Quite honestly, I do not know. It depends on
your employer. If vou are going to work for Pacific Bell, then you
can. If you work tot Cracker Barrel, we know you cannot. And if
you work for a lot of other employers, I do not know. There is no
law out there that will protect you if you in fact do come out.
But I will also tell you that it is harmful to be silent. It is harm-
ful to try to hide who you are, which is part of why I believe Sen-
ator Wellstone, as Jew, had the response he had, because Jews for
so long have been told: Be silent, and you can get ahead.
So I say to people what this person says — ^you know, a lot of peo-
ple do not get fired for being gay. I will tell you it probably might
40
affect your promotion abilities. I will tell you that you might have
to deal with harassment like Ernest Dillon did. But it is worth it.
But it is more worth it to have a Federal law that says you can-
not be fired from your job if you came out, just like you cannot be
fired if you are a woman or a Jew or a black person or a person
with a disability, or any number of the other characteristics that
Congrress has protected.
Employment discrimination on the basis of sexual orientation
should be outlawed by Congress.
Let me respond directly to some of the contrary arguments that
you have heard from my co-panelists. The first set of arguments es-
sentially boils down to the claim that gay people do not really need
protection.
The support for this claim, as Senator Wellstone quoted firom
Professor Broadus' testimony and also fi*om Mr. Knight's written
testimony, is that gay people are economically advantaged, that
they are, as Professor Broadus said, "an elite group" that is not in
need of protection from job discrimination; and as he said, look for
the injury before you Iook for a remedy.
The evidence for that, as we just heard from Mr. Knight, is that
gay people are more likely to have higher per capita annual in-
comes, are more likely to travel — it is the "frequent flyer" argu-
ment, as I call it — and are more likely to be college-educated.
There was one significant problem with his argument. It is the
methodological flaw that Senator Wellstone referred to. The data
does not support the assertion.
The main source used by both Mr. Knight and Professor Broadus
is the Simmons report. I have the report here, which I would like
to submit for the record, with all the striking statistics quoted by
my co-panelists. Let me read to you an explanation of the report
fi^om the marketing company that produced it. The company ex-
plains that "This data describes readers of selected gay publica-
tions in various large cities." The company explains, "The informa-
tion gathered by the Simmons organization was never intended and
never claimed to represent the gay and lesbicin community at large,
but only the readers of the individual member publications. Just as
a survey of the readers of Newsweek," Forbes,' or' Redbook' are not
representative of all Americans, the Simmons survey does not rep-
resent all members of the gay and lesbicui community."
[The information referred to appears at the end of the hearing
record.]
Ms. Feldblum. As Dr. Lee Badgett, an economist at the Univer-
sity of Maryland who has actually studied this issue, points out, "It
is perfectly reasonable to survey a group of readers to determine
the marketing potential of advertising in those publications. But
common sense tells us those results will not accurately describe the
overall group."
For example, she points out, "It would be inaccurate to take a de-
scription of the readers aimed at African Americans as an accurate
description of all African Americans in the United States." In fact,
Dr. Badgett points out, "In 1989, the same Simmons Research
Group did a survey revealing that the readers of Ebony," Essence,
and Jet magazines earned 41 to 82 percent more than the typical
41
African American" — not surprising, in terms of the group that
would buy magazines.
I would like to submit for the record a study done by Dr. Lee
Badgett and this explanation from the Simmons report. I would
also like to submit for the record the results of a recent study con-
ducted by Yankelovich Partners, described by 'The New York
Times" as probably the first nationally representative survey — ^that
is, they used a larger sample for the survey — on the average earn-
ings of gay and lesbian Americans. The Yankelovich survey found
that incomes were basically the same, although gay men actually
had lower incomes than heterosexual men in two categories.
[The documents referred to appear at the end of the hearing
record.]
Ms. Feldblum. So the data presented by my two co-panelists do
not support their assertions that gay people represent an elite and
privileged group not in need of employment discrimination. Again,
I think anyone who heard Cheryl Summerville will know that she
is not a member of an elite group. She is, as she told Senator Ken-
nedy, "making a go of it" right now.
Discrimination is out there, alive and well. And you know, to be
honest, despite your protestations to the contrary, I believe you do
know that discrimination is out there. And that is why I think the
second set of arguments essentially boils down to the claim that,
well, perhaps there is discrimination against some gay men and
lesbians, but that discrimination need not and in fact should not
be outlawed. That is in essence the second set of claims — it need
not and should not be outlawed.
This argument takes two forms. The first is what I call the com-
parison argument. You are seeing the comparison argument before
you eyes right now — there are a number of African Americans in
the back of the room who are wearing stickers that say, "There is
no comparison."
The comparison argument is not valid for public policy decision-
making on the part of Congress. The argument is that gay people,
for example, have not suffered as much as African Americans and
therefore do not deserve similar protection.
To try to create a hierarchy of oppression misses the point en-
tirely. As the child of a Holocaust survivor, I would never say that
the oppression that Jews face is the same as the oppression that
women face. But that is irrelevant for Congress in deciding wheth-
er to pass, for example, employment anti-discrimination for Jews
and women.
The question is: Do Jews, do women, face employment discrimi-
nation? If they do, based on a characteristic that is not relevant.
Congress should, as it has, pass a law prohibiting such discrimina-
tion.
The relevant question is not who has suffered more among mi-
norities. I would never want to answer that question. The relevant
question for Congress is does discrimination exist. It does exist,
and so it is appropriate for Congress to act.
The second form the argument takes is that gay people are not
a real minority. Real minority groups, according to my co-panelists,
have immutable, benign, nonbehavioral characteristics. Gay people,
42
by contrast, claim minority status based solely on behavior. That
was Mr. Knight's first point, or one of his first point.
And the argument goes, this behavior is clearly not immutable,
because there is no definitive scientific evidence that homosexuality
is genetic, and many people overcome their homosexuality, as their
written testimony talks about.
Even if it were true that one's sexual orientation were easily mu-
table— which I would like to address in a moment — the problem
with this argument is that it is totally irrelevant for purposes of
passage of a civil rights law. An individual's access to protection
under a Federal civil rights law has never been tied to whether
that individual could lose that characteristic. A Jew or a Muslim
could convert to Christianity and thereby avoid discrimination on
the part of an employer who wants to hire only Christian. But Title
VII still protects people on the basis of religion.
The ability to suppress, to change, or to hide a particular char-
acteristic such as one's religion has never been grounds for denying
protection to that person based on that characteristic.
In any event, my co-panelists misrepresent the State of the
science in their written testimony. It is true we do not know defi-
nitely at this point whether one s sexual orientation — and that is
both homosexuality and heterosexuality — ^is determined by biology,
by environmental circumstances, or both. I am not sure we will
ever know. But all of the scientific and psychological research, in-
cluding studies cited by my co-panelists in their written testimony,
indicates that sexual orientation is probably fixed by the time a
child reaches the age of 4. So even if it were conclusively shown
that sexual orientation is just a product of environmental factors —
a theory which, by the way, is under significant challenge — one's
sexual orientation would still not be a conscious choice made by an
adult.
Let me go back to the relevant question for this hearing: Is there
a problem of employment discrimination against gay people in this
country? The answer to that is yes. So let me go ahead with the
second relevant question for this hearing: Is S. 2238 a reasoned
and balanced approach to the problem of employment discrimina-
tion? The answer is yes.
The core of S. 2238 is found in section 3. That section states, in
a simple and straightforward manner, that an employer may not
use the fact of an individual's sexual orientation in making an em-
ployment decision. An employer may not treat an individual better
or worse because that individual is a gay man, a lesbian, a bisex-
ual, or a heterosexual — no better and no worse; just the same.
A lot of S. 2238 addresses what the bill does not do. You have
heard already today the bill does not create a right to partner ben-
efits, does not allow disparate impact claims, prohibits quotas or
preferential treatment, and contains a broad religious exemption.
I would be happy to answer any technical legal questions you
may have on any of these provisions.
Let me correct here, though, two apparent misreadings of the bill
presented by my co-panelists, and I am sure that both of them will
be relieved to hear that the bill in fact does not and will not result
in some of the scenarios and hypotheticals that they anticipate.
43
First, the bill will not prohibit an employer from disciplining an
employee for sexual acts, however bizarre or disruptive, I believe
was the quote in Professor Broadus* testimony, on or off the job.
The bill would not, for example, prohibit a school from firing a
faculty member implicated in a scandal with a same sex prostitute,
or a grade school teacher implicated in sexual child abuse — the two
examples presented by Professor Broadus in his written testi-
mony— nor would it prevent the law firm from firing the person
who engaged in some of the inappropriate sexual conduct he men-
tioned in his oral testimony.
The school or the law firm would just need to have a poHcy which
it applies equally to gay and straight teachers. The law firm would
just have to have a policy which it applies equally to gay and
straight lawyers that requires dismissal of employees who engage
in such activities. Nothing about that policy would violate S. 2238.
Now, as I understand it. Professor Broadus' concern stems from
the definition of the term, "sexual orientation" in the law, which
says that "sexual orientation is gay, lesbian, bisexual, or hetero-
sexual orientation as manifested oy statements, acts, associations,
identity."
All that means is that to estabHsh yourself as a member of the
protected group, you can use any of those factors. So, for example,
to establish that you are a heterosexual— let us say you were fired
because you are a heterosexual — you either say, "I State that I am
a heterosexual," which is orientation manifested by statements, or
you say, "I engage in heterosexual acts." That brings you in under
the definition. All that does is make you a member of the protected
class
It is just like the Americans with Disabilities Act, which is the
bill I worked on for a number of years. There is a definition in the
bill that estabhshes whether you are a person with a disability,
and the person has to show that he or she meets that standard in
order to be a member of the protected class. And once you are a
member of the protected class, that does not mean that you get to
do anything that you want on the job, whether it is connected to
your disability, or it is connected to your sexual orientation. Under
the ADA, you still have to be qualified for the job, you still have
to abide by all workplace rules that are uniformly enforced. The
same thing for a person who gets coverage imder this bill. They
still have to be qualified for the job. They still have to abide by uni-
formly-applied workplace rules, including rules that discipline and
fire people for inappropriate sexual conduct.
Second, my co-panelists have tried to figure out every possible
scenario as to why S. 2238 will ultimately result in quotas, will ul-
timately allow disparate impact claims, and will ultimately require
preferential treatment. They really, really want to be able to say
that this is a special rights bill. It is not. No matter which way you
turn this bill, it is not.
Now, it is true that courts ofi;en interpret laws in an expansive
manner. Both of my co-panelists say that in their written state-
ments. But I will tell you as a professor of statutory interpreta-
tion— that is what I teach in my legislation course — it is difficult,
no, nigh impossible, for a court to apply an expansive interpreta-
tion on a flat-out prohibition. There is a flat-out prohibition in this
44
bill against quotas. There is a flat-out prohibition against pref-
erential treatment. There is a flat-out prohibition on disparate im-
pact claims. Laws do not usually get clearer than that.
So the entire piece of NLRB section 8(a) 1 is irrelevant because
all the court saia in NLRB v. Erie, the case in 1963 which is what
Professor Broadus was referring to, was that you do not have to
show intent when you coerce. You can have an effects test because
that is already in the underlying law. This bill has eliminated dis-
parate impact as an underlying oasis, and so that other case is ir-
relevant.
To be honest. Senator Kassebaum, gay people have never sought
quotas; they have never sought preierential treatment. We have
sought equality. We have sought equal treatment. We have sought
fairness.
It is time for Congress to pass the Employment Non-Discrimina-
tion Act of 1994. We look forward to your leadership.
I would be pleased to answer any questions. [Applause.]
[The prepared statement of Ms. Feldblum appears at the end of
the hearing record.]
Senator Kassebaum. Thank you.
Let me ask a couple of questions. One, I certainly would agree
that discrimination does exist. I am not sure that the remedy is S.
2238, but I think one can say that discrimination exists and still
question the remedy. I would like to ask Mr. Broadus, because I
thought he made an interesting point — and maybe, Ms. Feldblum,
you would like to respond. You mentioned that the legislation pro-
hibits discrimination based on behavior and that that is unique. I
believe it is unique under civil rights law as far as making behav-
ior a discriminatory practice. Is that what you were stating?
Mr. Broadus. That is what I was stating. And I think it is very
important — perhaps Professor Feldblum missed the point when
reading what is prohibited by the statute — it is not just prohibited
to treat gays and straights differently. The third paragraph of
those prohibitions prohibits otherwise discriminating on the basis
of sexual orientation. What that means is ever, at any place in the
workplace, taking sexual orientation into consideration prior to
making employment decisions. That is otherwise discriminating,
and that does take those acts which manifest the orientation aiid
provide for every act, without reference to whether it is on the job
or away from the job. That phrase protects every act which serves
as a manifestation of orientation.
Senator Kassebaum. Well, I am not a lawyer. I have two very
articulate lawyers here in front of me. Ms. Feldblum, let me ask
you what do you see as the potential consequences of discrimina-
tion legislation based on behavior?
Ms. Feldblum. I actually do not think it is unique in Federal
civil rights law.
Senator Kassebaum. What else?
Ms. Feldblum. I will tell you why, and it is actually very much
because of my experience growing up. I grew up as an Orthodox
Jew. For Ortnodox Jews, when f would say, "I am an Orthodox
Jew," that meant that I did various things. It meant that I prayed
three times a day. It meant that I kept kosher.
Senator Kassebaum. That is religion.
45
Ms. Feldblum. There were behaviors that were connected to my
being an Orthodox Jew that the statement actually had no mean-
ing apart from that. Again, I know Judaism better than other reli-
gions, but my sense is that it does not quite make sense to just pull
out and say, we will protect you if you say you are a Jew, but if
you need to leave early on Friday afternoon, or — ^the behaviors
manifested by being a Jew, we cannot protect. It has never been
that way in civil rights laws.
So this would not be unique and imusual. What civil rights laws
have usuallv done is ask is there a characteristic that people as a
g^oup are being discriminated against for, and does that char-
acteristic in fact have no relationship to their ability in this case,
let us say, to do a job— because if that does exist, then it is appro-
priate for Congress to act. It is appropriate to have a remedy that
says that would be illegal.
So I think that is not quite right to say that it is completely
unique.
Is that responsive to your question?
Senator Kassebaum. Well, somewhat. I think when you get into
characteristics of the Orthodox Jew, it is Judaism, though, as a re-
ligion that is protected. There are behavior practices of one kind or
another — like a bom-again Christian, I suppose, Christianity.
There are certain behavioral characteristics that one could associ-
ate there. But this is a total discriminatory practice based on be-
havior. And I do believe that is unique. That is what I was asking
you, and what you think the consequences of that may be.
Ms. Feldblum. I think it is important to look at whether it
makes sense to allow employers to fire people because they are gay.
I think that has to be the essential question.
There are clearly people — many people in this room — who believe
that it is entirely appropriate for employers to be able to fire some-
one just because he or she is gay. You know, 70 percent of the
American public when they are surveyed say they do not think so.
They do not like gay people particularly, a lot of people in America;
they do not really want their sons and daughters to be gay. A lot
of them do not like their behaviors. But they think it is a wrong
thing for people to be fired from their jobs. And that is really all
that we are saying with this piece of legislation.
Senator Kassebaum. Mr. Broadus, I would like to ask you about
the disparate impact claims. You say that even though they were
not included in the bill, such cases could still be brought.
Mr. Broadus. Oh, I think the statement is stronger than that.
I think what this bill ends up doing is prohibiting the use of dis-
parate treatment, as a very technical thing, prohibiting the use of
disparate treatment as evidence in claims that resemble those
under 703(k). That is as limited and specific as you can get. And
the problem is that this is a remedial statute, and courts will read
restrictions on it as narrowly as possible. Then they will turn to
the coercion claim, which is separate statutorily from the discrimi-
nation claim, and read it broadly because it provides protection.
And since the history of this wording has been to provide to effects
claims, this provision will undoubtedly be interpreted consistent
with that history.
46
And it is not one case, Senator, one case back in the 1960's, that
this language has been required not to require intent; it is the en-
tire train of cases over the history of this language. And this lan-
guage inescapably provides for effects claims. It is the godfather of
disparate impact analysis. You use this language, and with this
language, you get quotas.
Senator Kassebaum. Well, I would guess Ms. Feldblum does not
agree with you on tiiat. Let me just say that I think for me, there
have been some very interesting legal questions here. As I said in
the beginning, we have to decide whether we can promote greater
tolerance by encouraging litigation, and whether that should be the
remedy. But whether this will tie us into knots and solve the prob-
lems that we want to see solved, I think is something that we have
to debate.
So I very much appreciate the legal expertise that you both have
brought, and thank you, Mr. Knight. I very much appreciate your
willingness to come today.
[Additional statements and material submitted for the record fol-
low:]
XEROX
July 26, 1994
The Honorable Edward M Kennedy
United States Senate
Washington. DC POSIO
Dear Senator Kennedy
In April, 1990, Xerox revised its nondiscrimination policy to include the
category of sexual orientation Discrimination of any form, agamst any
employees, does not belong in our work environment
We view diversity awareness and acceptance as enablers "o increased
productivity We strive to create an atmosphere where all employees are
encouraged to contribute to their fullest potential Fear of reonsais on
the basis of sexual orientation only serves to undermine that goal
Enhancing our work environment to prohibit discrimination on the basis
of sexual orientation has not added any financial cost to our
organization Instead, we believe our philosophy and practice of valuing
diversity brings financial benefits to the workplace by encouraging full
and open participation by all employees
Accordingly, we are pleased to see your effort to enact federal
legislation that will prohibit employment discrimination on the basis of
sexual orientation From the vantage point of our experiences to end
workplace discrimination and our understancing of the Employment
Non-Discrimination Act of 1994, we orfer our endorsement oi :his biii
which IS designed to ensure fair anc3 equal treatment for ail citizens on
the lob.
Sincerely,
C<
Paul A Allaire
47
The Honorable Edward M Kennedy tUiif*'9Vy<Z£\tf
United States Senate PfMK^i%J^€Jll
Washington, DC. 20510
July 27, 1994
Dear Senator Kennedy:
Microsoft seeks to empower individuals to do the best possible job and to make a
difference m the world. We have a strong commitment to encourage diversity in our
workforce. We hire the best and brightest people, without regard to their race, color, sex,
sexual onentation, religion, national origin, marital status, age, disability or veteran status
We commend you for your efforts and are pleased to endorse your Equal Employment
Principles, which reflect our own corporate policies.
Sincerely,
William H. Neukom
Senior Vice President for Law and
Corporate Affairs
Jerre L. Stead
Cfiiei Execulive OHicer .■ iCTtaT
Execui.ve v,ce Presiaem. ATST ,.5 Global Information
__j.- Solutions
Honorable Edward Kennedy 700 Souin Paiietson Bouievaio
Chairman. Labor and Human Resources Committee ooyion oh 45479-0001
•J n i4D- / . 'jo
U.S. Senate fax si3 ab-TOH
Washington. D.C. 20510
July 28, 1994
Dear Senator Kennedy.
1 am writing to express my suppon of the Employment Non-Discrimination Act (ENDAl
of 1994. Creating a globally diverse environment that is enriched by people ot varied
races, ethnic backgrounds, and lifestyles is not only my personal goal, but AT&T's goal us
well.
1 am very proud to be part of AT&T because our company has a long tradition of
respecting diversity. Nearly two decades ago. AT&T established a policy that prohibits
job discrimination on the basis of sexual orientation. This enabled AT&T to take a
leadership role in welcoming people of diverse lifestyles.
As CEO of AT&T Global Information Solutions (AT&T GIS). I ensure our team
continues to hire, train, promote, and pay our associates employees) based on skills and
performance, not on sexual or.er.taiicn. .^T&T GIS also has diversity champions whose
key responsibilities revolve around extending and encouraging trust and respect among
our associates.
In addition, our AT&T GIS .senior management is implementing a diversity strategy that
will ensure we maintain an environment where associates are free to realize their highest
personal and professional aspirations without fear of discrimination. VVe realize that our
company s ultimate goal--dclighted customers-begins internally with delighted
associates. Our company's only real sustainable competitive advantage is our people.
1 am proud to join a team, made up of bipanisan members of Congress and civil rights
leaders, whose goal is to prohibit job di.scnmination on 'he basis of sexual orientation. It
is critical that we work together to ensure individual rights and libenies are not
compromised.
Mv very best regards.
Jerre Stead
48
Honeywell
Michael R. Bonsignore
Chainnan and
Chief Executive Otficer
Honeywell Inc-
Honcv^vell Plaza
PO Box 524
Minneapolis, MN 55440-0524
012 951-2297
August 19, 1994
The Honorable Edward M. Kennedy
United States Senate
3 15 Russell Senate Office Building
Washington. DC 20510
Dear Senator Kennedy;
I am ^mting in support of your Equal Employment Principles and the Employment
Non-Discnmination Act of 1994
Our Honeywell diversity policy prohibits discrimination on the basis of sexual
orientation We believe such a position is nght and just, and acknowledges the
full spectrum of our human diversity We wish you the best of luck with your
legislative efforts in this regard.
Sincerely,
\m
Borland
Testimony of Philippe Kahn
Orflce or the Chainnin
Philippe Kahn
lOOBtirland Vmy
Sa»u Wiley. CA
»506ft-12<« USA
f«MI 43I-III0.5
Fj«: (40K) 4}|-^.Y)9
Good moming. Mr. Chairman, Senator Kassebaum. and distinguished
members of the committee. My name is Philippe Kahn, and I am President,
OuiiTTnan and CEO of Borland IntematioDal, the world's leading supplier of
databases and programming languages for personal computers.
I am here today, as one of many, to endorse the Employment Non-
Discrimmation Aa. of 1994.
Boriund Lalcmadonal was one of the first Silicon Valley companies to
vohmtarily adopt a company-wide pohcy barring discntnmatioa based on
sexual orientation — a pohcy which parallels, and in some ways surpasses, the
49
Employment Non-Discnmination Act. We adopted our policy not only out of
a sense of basic fairness, but because it makes sound busmess sense.
As you probably know, the computer software industry is one of the most
competitive in the world. In the technology business, it has been proven many
times that falling one step behind can be fatal. Therefore, it is of tantamount
importance that we attract and retain the most qualified individuals for each
job. Borland's experience clearly demonstrates that a policy barring
discrimination based on sexual orientation helps us do this. We want our
employees to understand that they will be judged solely by their performance,
and not the prejudice of others. We strongly believe that an employee's race,
sex, religion, national origm, age, disability and/or sexual orientation MUST
NOT ever be the basis for hiring, firing, promotion or compensation.
In the field of Compiler Software, many of us - who might be fierce
competitors in other ways — stand together on this policy. Other companies
that have similar non-<iiscrimmation policies are Apple Computer, Digital
Equipment, IBM, Lotus Development, Microsoft, Silicon Graphics, and Sun
Microsystems.
Outside of our industry, the Wall Street Project has shown that 5.7 million
employees of over 150 of America's leading corporations arc already covered
by non-discrimination policies which include sexual orientation. Examples of
these companies include General Motors, AT&T, Mobil Oil, Amencan
Express, DuPont, Sears, Proctor and Gamble, J.C. Penny and R.J. Reynolds.
And smcc 1990, the nimiber of companies with such policies has tripled.
Mr. Chairman, Senator Kassebaum, Gentlemen: I am here today because I
was distressed to learn that in 42 states, it is currently legal under federal law
for an employer to fire a qualified employee because of his or her sexual
orientation This baffles me, since it is clear that the increased diversity
provided to America's workforce by women, minorities and people with
disabilities has made our nation stronger. I believe that what applied
previously to other groups who experienced discnminanon applies now to the
situation with lesbians and gays. It is unfortunate that — as in the past — it will
ultimately take the actions of the Federal Govcmmcot before the majority of
American businesses senously address this issue.
Thus, we all need the Employment Non-Discrimination Act. This isn't just for
lesbian and gay employees, it is for everyone. And it isn't just good business
sense, it an aflirmation of equal opportunity.
Thank you very much for your time. I welcome any quesnons you may have.
TESTIMONY OF RICHARD WOMACK, DIRECTOR
DEPARTMENT OF CIVIL RIGHTS, AMERICAN FEDERATION OF
LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
BEFORE
THE SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES ON
S. 2238, EMPLOYMENT NON-DISCRIMINATION ACT OF 1994
July 29. 1994
My name is Richard Womack and I am the Dixoctor of the AFL-QO Depanmcm of Civil
Rights. By resolution of our convention, the AFL-CIO has stated that the ame is long past due
for the passage of legislation such as S. 2238, the Employment Non-Discnmination Act
prohibiting discrimination in employment because of one's sexual onentauon. The AFL-CIO
50
is compnsed of over 80 aJfiliated International Unions, which in turn represent over 14 million
U.S. workers. ?
Histoncally the AFL-CIO has been a strong supporter of civil rights legislation
prtihibiting discrimination in many areas, including voting, housing, education and, of course,
in employment. In fact, Title VII of the 1964 Civil Rights Act, prohibiting discrimination in
employment because of race, sex, religion or national origin is there because of the insistence
of then AFL-CIO President George Meany. There was no employment anii-discrimmatlon title
in that legislation to begin with, but the AFL-CIO demanded its inclusion in liie Act.
It is a fundamental principle of the AFL-CIO that civil nghu be extended to ail citizens
in a democratic society. Support of the Employment Non-Discrimination Act of 1994 is part
of our commitment to that principle.
Wc believe that it is the responsibility of trade unions to guarantee that workers be judged
on their work and not by irrelevant cntena that address tlieir private lives. Dismissal,
harassment and intimidation of workers for reasons unrelated to their job performance is an
employer tactic well known to the labor movement.
Wc protest any actions taken against a worker solely on the basis of sexual orientation
and we support legislation at all levels oi government to guarantee the civil rights of ail persons
without regard to sexual orientation in public and private employment.
When an Arizona judge rules that "an employee is not wrongfully terminated if he is
fired for being .homosexual, ' then it is dme to change Uie law.
If the law was changed then Cheryl SummerviUe might be able to get her job back.
SummervUle was a reliable and weil-liked cook at Cracker Barrel restaurant near Atlanta. She
is also a lesbian. But that company instituted a policy saying they would employ no person
"whose sexual preferences fail to demonstrate normal heterosexual values. ' Cheryl was fired
and her termination nodce said why. "This employee is being terminated due to violation of
company policy. She is gay."
It is time to stop this blaiant workplace discrimination. Workers in all occupations have
been fired, and continue to be fired, because they arc gay or lesbian. In the workplace, the
AFL-CIO believes people should be judged on their work, not their religious preference, not
their race, not their national origin, not their gender. Discriminating or firing someone for those
reasons is against the law. Workers should not live in tear of losing their jobs or being denied
promoDons because of their sexual orientation. That should also be against the law.
We congratulate Senators Kennedy and Chafee and the co-sponsors of S. 2238 for their
leadership in introducing this legislation.
51
The proposed legislation is straightforward and consistent with anti-employment
discrimmauon Icgislacron which proteas minorities, women, the disabled and the elderly. The
bill also contains important provisions which prohibit quotas and preferential treatment, and does
not itquire an employer to provide benefits for the same sex partner of an employee. This is
something that many of our unions have collectively bargained for and they will continue to do
$0.
Again, we firmly suppon this legislation, believing that employment decisions should be
made on the basis of an individual's ability to perform a job.
Recent polls have shown that three-fourths of the American people believe thai there
should not be this kind of discriminauon in the work place. This kind of legislation is long
overdue. Eight states and many localities have adopted this kind of legislation. It is ume for
the federal government to act.
We look forward to working with you to ensure that S. 2238 is passed by Congress, and
signed by the President, granting legal protection from employment discrimination to persons
who have been historically denied equal opportunity in the workplace. It bears repeating that
this is a matter of fairness and simple justice.
52
Leadership Conference
on Civil Rights
1629 'K- St.. NW. 8«IC« 1010
WMhlaftoa. D.C 2iM>06
202/«46-3ail
AjnoM Ar^nsun
A. PhillD R^rwloinn*
Hoy Wiih>ru'
Bcniainm L. hooks
Juditn L ucntman
MlliAfT L Tiyio/
DofOlhy rt»iQrn
Ooroio vw. McEniM
LLCULaTIVC C^^Al^WKO«
cguHtCLkxc^ius
K>«0*MMV CI iAjO»CA:k)N?
CUr*nc* M. MlicAMt. J' '
utomvc co« terra
^■roAft Arrr^ins
CAM t*wm» UMW ia«
Oweft 8100W
3oehT Cain
EuMn* Giov«r
Pitncia irfltn^
Joiin E. J4C(JU
Elains Jonas
Laura Mutoftv coo
joseon Lo^ftiv
Stt.rMm CA/i«r<*« laainitn'p Ca*/i'*m>
Leon L«l^cn
LABOR UNION STATEMENT OF ENDORSEMENT
For The
EMPLOYMENT NON-DISCRIMINATION ACT OF 1994
The lubor movement has histoncaJly upheld the fundamental principle of civil
rights for ail ciuzetis in a deraocraac sodeiy and h;is been a leader in tighong
JiMaiminalioii in Ajnenoi. Diitritiiinaiion on ihe grounds of sexuiil ofienialion is like
tJiscruninauon based on ruce, ^ex, or religion, in mac people are not juaged by their
individual merits, but according lo a pnvaic issue thai is extraneous to tlicir
employment. Tlius, ii is appropnate thai labor unions endorse the Employment Non-
DiscmiunauoQ Act of 1994 (ENDA), a measure designed to ensure equal rights in the
worlcplace for all workers \without re^'urd lo sexual onentauon.
Wc applaud Senator Kennedy and the co-sponsors ol" S2238, for leading the
Congress ;uid the luuon in mtfoducuig ttus measure which recognues ihut an
individual's sexual onemation bears no relationship to the individual's ability to
contribute to the workplace; ihat histoncally, Amcncan society has tended to isolate and
bUgmatizc gay men. lesbians and biscxuals; that a significant arena in which this
discnminanon take:, place is the workplace; and that employment discnminaiion on the
basis of sexual oncntauon violates the b.'^sic Amcncan values of equality and fairness.
Employment decisioos should be made on the basis of an individual's ability to
perform a job. Each year, thousands or Americans arc dcmed employment
opportunities because of Uieir sexual orieniauon. This discnminanon occurs in many
forms as Amerie.in workers are not hired, fired, do not receive job promooons, or deal
with verbal and physical abuse from co- workers and supervisors simply because of
iheir scxuii orientation. All of these harassmg actions and tacacs which are unrelated to
job i^erformance and based upon prejudice and bigotry, .ire well litiown lo the labor
movemeni. We know that withoui legal protections, gay men. lesbians and biscxuals
ore more likely to be targeteo foe hate crimes, even in the workplace. We denounce
harassment or violence against anyone because of her or his sexual onentatiotL Trade
unions have long fought for the right of workers to be judged on their work and not by
irrelevant cnteria thai addresses their pnvatc lives.
This historic measure, endorsed by the Leadership Conlcrcnce on Civil Rights,
extends mu legal protections from employment discnmmaaon to those who nave
histoncally been denied et^uai opportunity in die workplace. E^fDA ii a siep in die nght
direction of providing equal opportumiy for all Americans.
jacxis OAf^auo
Ricnam Woniacft
Hanisti Woods
P«ln»hi Whgrt
■an** AM OliliiMl f-f^
R*ul VuouiTT*
Qiorlca Kam«3aKl. Chotr^tno'*
JT4f*
Rjlpn O N»«a
AOHiiatT^rvi A4Aiar&>^
usa M. nsvwood
*<Aim\ McOIII Amngion
.\FL-CIO
CaUforma Labor Federation, AFL-CIO
Department ror Profts-sional Emnloyees,
.\fL-CIO,
Indastnai Union Departrneiit. AFL-CIO
San Francisco Labor Council, AFL-CIO
Coalition of Labor Union Women
International Ladies Garment Workei-s
Umon
United Automobile, .Aerospace and
.•\gncultunil Impiement Workeis ol
.\menea
Service Employees Intcrnauonal Union
Health Care Workers, Local 250 (SEIU^
.\mencan Fcdcranon ot Teacbers
United Steel Workers of .\menca
LesftiansyGay Labor Alliance
International Umon of Electronic,
Electncal, Saianed, Machine and
Furmiure Workers
.National Treasury Employees Umon
Actors' Equity Association
.Amalgamated Clothing and Textile
Workers Umon
The Newsoaper Guild
Liiternauonal Association of Fire Fighters
CommumeaQons Workers of Anuenca
.Amencan Sutc. County and Muniapal
Employees
,\.s.sociation of f^gbt Aaendants
"tQuaUty In a /-r»v. Plural. Ovmocrcnc Socifry'
.-1®U...
53
SEpartmEut of 3^^titt
STATEMENT OF
DEVAL PATRICK
ASSISTANT ATTORNEY GENERAL
CIVIL RIGHTS DIVISION
Mr. Chairman and Members of the Committee, I am pleased to
provide this testimony today on the problems addressed by S.
2238, the Employment Non-Discrimination Act of 1994.
On behalf of the President, I want to commend you, Mr.
Chairman, your colleagues in the House, Mr. Frank and Mr. Studds,
and your more than 130 cosponsors in both chambers, for
introducing this bill. It is a serious and thoughtful approach
to address the problem of discrimination against gay men and
lesbians. Because the President strongly supports the principle
of non-discrimination based on sexual orientation, he will sign
into law legislation passed by Congress that prohibits
discrimination in employment based on sexual orientation.
The President and his Administration have consistently
supported the principle of non-discrimination in employment. All
Americans should be able to find jobs, keep jobs and earn
promotions based on their qualifications and the quality of their
work, not on irrelevant characteristics. This has been a core
value in this country for many years.
As you know, thirty years ago, Congress enacted the Civil
Rights Act of 1964, including Title VII which prohibits
discrimination in employment based on race, color, religion, sex
and national origin. In 1967, the Age Discrimination in
Employment Act was enacted to protect older Americans. Most
recently, in 1990, Congress enacted the Americans with
Disabilities Act to extend full civil rights protections to
persons with disabilities. All of these are legislative markers
54
on the road to full and productive participation in our free
society. ?
These laws reflect Congress' deepening understanding of the
notion that characteristics such as race, religion, sex, age and
disability have no relevance to the ability of an individual to
perforin required functions of a job. Quite often, unfortunately,
prejudice and stereotypes held by some employers still limit a
gay or lesbian person's ability to obtain and keep a job. But as
the President said in Riga, Latvia, recently, "Freedom without
tolerance is freedom unfulfilled." In that spirit, this
Administration believes the principle of non-discrimination in
employment should be extended to include sexual orientation. The
Administration wants to work with Congress to enact such a bill
to make this principle a reality.
Our Nation prides itself on embracing the principle that
persons should be judged based on merit and ability, not on
class, culture or other extraneous factors. Our civil rights
laws reflect this principle. By allowing employment
discrimination on the basis of sexual orientation, our society
cheats itself out of the contributions of very able and talented
individuals throughout the Nation. As the international market
place becomes increasingly competitive, America does not have the
luxury of wasting talent.
The Administration supports using the framework of Title VII
to provide protections against discrimination based on sexual
orientation. These well known standards — covering the sane
employers, using the same standards, and providing the same
enforcement mechanisms — provide employers and employees with
solid guidance on the law. S. 2238 takes this sound approach,
building on 30 years of Title Vll jurisprudence.
S. 2238 makes a number of exceptions to the basic Title VII
provisions. The first is for instances of disparate impact.
Disparate impact was first recognized as a basis for establishing
a violation of Title vil by the U.S. Supreme Court in Griggs v.
55
Duke Power, 401 U.S. 424 (1971). In Griggs, the Court recognized
that a facially jieutral practice that appears fair in form but
discriminatory in operation, and if not justified by business
necessity, is prohibited by Title Vll. The Civil Rights Act of
1991 amended Title VII to codify the disparate impact standard.
S. 2238, however, explicitly excludes disparate impact as a
method of proof in cases of discrimination on the basis of sexual
orientation.
The President has always supported, and strongly respects,
freedom of religion. The administration supports carefully
crafted provisions to insure that civil rights laws do not unduly
interfere with that freedom. Title VII excludes religious
organizations from the prohibition from discrimination based upon
religion. The Employment Non-Discrimination Act respects freedom
of religion by providing a broad exemption for religious
organizations, an exemption broader than in other employment
discrimination laws.
The third distinction from Title VII pertains to benefits.
Under Title vii, discrimination in the provision of employee
benefits is prohibited. The Employment Non-Discrimination Act,
by contrast, would not apply to the provision of employee
benefits to an individual for the benefit of his or her partner.
The fourth exception is for members of the armed forces.
Title VII does not apply to members of the armed forces. S. 2238
would not apply and would have absolutely no impact on uniformed
military employment practices. The Administration agrees with
this approach.
The President has consistently opposed the use of quotas in
employment discrimination law and his position is no different
here. In addition to the exceptions outlined above, S. 2238
explicitly prohibits the use of quotas. The Administration
agrees that any bill addressing this issue should rule out the
use of quotas.
56
The notion of providing antidiscrimination protection is not
so novel as to be untested in the public and private sectors.
Longstanding Federal employment policy prohibits discrimination
based on non- job-related conduct, including discrimination based
on sexual orientation. We know of nothing in that experience to
suggest a loss or reduction in productive capacity or workplace
goodwill. Eight states and over 80 local governments provide
some form of protection. Indeed, 308 of your colleagues in the
House and Senate have pledged not to discriminate in employment
based on sexual orientation.
In the private sector, nunerous companies such as General
Motors, Miller Brewing Company, Citicorp, IBM, and AT&T have
policies of non-discrimination based on sexual orientation. A
number of these employers also provide the same degree of
empioyee benefits to a person's partner, without regard to sexual
orientation.
Until this year, Congress had not heard testimony on the
issue of employment discrimination based on sexual orientation in
nearly 15 years. I trust that over the course of these hearings
you will hear from many witnesses who will document the problems
faced by lesbians and gay men in employment, and that their
testimony will build a useful and solid record on the problem of
employment discrimination based on sexual orientation. Hearing
that testimony should lead you to the same conclusion we have
reached: that Congress should pass a bill to embody the principle
against discrimination in employment based on sexual orientation.
Mr. Chairman, thank you for the opportunity to testify
today. We expect to have some technical comments on the bill,
which we would like to supply for the hearing record. Beyond
that, we look forward to working with you and the Committee to
eliminate employment discrimination based upon sexual
orientation.
57
STATEMENT BY SENATOR JOHN H. CHAT
IN SUPPORT OF THE EMPLOYMENT NON-DZSCRZMZ
SENATE LABOR i HUMAN RESOURCES COMMIT
July 29, 1994
Today the Senate Labor and Human Resources Committee considers the
Employment Non-Discrimination Act (ENDA) , a bill to prohibit job
discrimination on the basis of sexual orientation. I joined in
introducing this bill last month, and I am pleased that the
Committee finds the bill worthy of discussion and action.
To my view, this is a matter of simple fairness and basic civil
rights — and frankly, common sense. It is my belief that every
American should be judged by the quality of his or her work, and
not by factors that are wholly unrelated to job performance. To
do otherwise only hurts employers and employees alike .
After all, what do business owners look for in a prospective
employee? It seems to me that when an employer is trying to fill
a position, be it entry-level or upper management, he or she is
looking for an individual who will get to the office or job site
on time every day, show some initiative and some hustle, and work
hard to come up with creative solutions to tough problems. These
are the qualities that help" make American workers among the most
productive in the world.
Congress has already made it clear that certain factors — among
them gender, race, religion, sex, and national origin — do not
play a role in the above qualifications, and can't be used as the
basis for discrimination against workers. Clearly, sexual
orientation also is not related to those qualifications.
Discriminating against men and women solely for reasons of sexual
orientation is not fair. And it deprives the U.S. of the talents
of a group of its citizens. Such discrimination doesn't make
sense. And adding common sense to our employment laws is the
point of this bill.
58
On July 13, our distinguished former colleague Barry Goldwater
lent his voice in support of this legislation in an Op-Ed in the
wwthHnafon Post. As always, his comments were concise and to the
point. Discrimination against gays or lesbians is not only
unfair, said the conservative senator from Arizona, but is also a
waste of potentially valuable workers. Senator Goldwater noted
that "there was no gay exemption in the right to 'life, liberty,
and the pursuit of happiness' in the Declaration of Independence.
Job discrimination against gays — or anybody else — is contrary
to each of these founding principles." He went on to point out
that "[j]ob discrimination excludes qualified individuals, lowers
worlc-force productivity, and eventually hurts us all. Topping the
new world order means attracting the best and creating a workplace
environment where everyone can excel. Anything less makes us a
second-rate nation. It's not just bad — it's bad business."
Senator Goldwater has hit the nail on the head. Discrimination is
contrary to our American principles, and only hobbles our efforts
to keep the U.S. as productive as possible. Let's do what common
sense demands: approve the Employment Non-Discrimination Act.
Barrg Goldwater
O.O.SOX laoi
6COTTsoAi.e. A«lzo^4A Bsaas
Jiilv 19. 1994
D«ur T«<i and Nancy.
I'm sorry I croildn'r l« tlier« uid.ny tor your licinng on ih« Kijiploymenl Non-
l^iscriminaiion Act uf 1V94. but I wmiieil lu (ei vuu kiiuw p«niunally ofmy slronij and
enttiutiastic support tor this iinporinnt loi>i)la(io(i. iVid ju5t in cnsc you liavcn't seen it.
rv« Rttached a copy ot'.i recent .iriicie I wrow for ilie Washington Po»ij whidt tells why 1
think tint bill in in «sii«nii.-il.
liinployitienT discriininntion based on soxii.il oncntaiion is n rent problem in our society.
From couift to cuasl iind ihrou^liuul iha liennlanil. r«j:ulur harU-%votking Ameriuanx lire
bcin^ denied the ngiil lu roll up ihoir nIccvv:^ and uant a livinu Tliul is juKl plain wrung.
In my own $lat« of .^ri^unu, we hail a young man named JelT Blain who worked hard and
wax woll-likud by hik Kupcrvi.sor^. In lucl, Ik- wnv doing $uch a jjood job, lliuy raucd his
salary by 1/3! T\va\ one day Ins supciAi.>:or found our he was j^av. so they tired hint.
I'relly obvious discnmrnalion - and upon and iiiui tuic. Wamg! When the man tried to
!iue, the judi^n insiniclud the jury that "an cmpU'yue i.n nut u-runyiujly lenninalod ii"aa is
tired for being homosexual "
Tltere's the rub. Most Ajttencans don't lealize that there's no federal law protectmg
qualitied and coinpetent Aincricmts from liciug tired or rctuscd a job solely because of
59
their sexual orientarion. And while X stares nnd over 101) nuinicipnlities now provide gays
and 1e«btBns the vime civtl rights in einploymetit provided lo other Aniericansi. that siill
leaves almosr80»'yof the country- wirti no fnrotcction .ii all.
That'; why it's so importsni for tlie L;ibor Conunittee. and the entire Senate, to stand up
and do what's right.
You don't have lo look very far to see ih;ii Uiore's a lot uf support oul there for this kind of
legislation. In 1992, I worked with n broad-bnscd bi-partisan coalition to pass an
ordinance prohibiting job discriminahon bnsed on Mximl orient.ition here in Phoenix; We
had the support of the civil nghts. raltgioiii. ^nd butiness communities. Even lare*
companic* like US West wuro uii our !iidc.
In »pile of this vi>ide support. <>onie people said the wurld \vuuld end if lite ordinance
paued. Bui it didn't. PhoeniN businesses haven l collapsed in I'act tliey haven't iiUffereU
one bit as i result. And tliat sliouldn't lie siirpnsuig. In states that have laws protecting
guy» and lesbians from job discnniimiiiv'ii. ofl'iciub repyn less tlun a 5% increrse in job
diacnmmaTion claims. As liS West pui ii, ilns kind of legislniion presents no danger to
fiiras who don't diMniminate.
Our own experience in Tucson, bears this oul. 14 years ago, Tucson's Republican mayor
helped paw> an ordinance proieciiiig gays unu lexbians in en\ploymenl. According to the
city manager's office, ttic ordinance 'lias had no negative impact on the business
community at all." 14 years and NO IMP.^C T - imagine tliat.
So you urn soa there's no ix»x to husincss, and it'.^ the riglit thing to do. It doesn't just
make dollars, it makes sense.
TTial's why such a brond-based coalition is endorsing tlie ryiiplo>Tncnt Non-Discrimination
Act today. Support has come from the 1 Aidership Conference on Civil Rights, Bishop
Browning of the tpiscopul Cliurch of Amenca. liabbi Schindler of the Union of American
Hebrew Cungregutiiiru. the Evan^cliciil Liithonin Chtirch oT America, [>. Paul Sherry of
tJie Uiuted Church of Christ, the N-A-i^CP. liie Japanese .^jiiencan Citirciw League, the
AFL-CIO. .'^FS^1E, and SEIU. .Ajiyonc who tan aiseinble that impressive of a group has
lo bu doing somuthins riulil.
1 recall the word> uf PlioeniK's own R«v. U'illiani O. Smilh ol tlw Shadow Rock
Congpigation. He may not Ix; as latnous as all iIkiso oilier lolks. bill he vtroit; a pretty
stirring letter in suppon of Phoeiiixs ordm.-.ncc "wo voars ago which I want to share with
you. In it he says: "To ilisugree wiili i.iiie lifestyle, religious persuasion or fK'litical view
is the nght of us uil. but lo deny enil. eijiiai luid liumim nghis of iinyunc or :iny group
destroys a little hit ofthe humanity ol each ot us."
I urge my former colleagues, both Republican and Democrat, lu join me in supporting this
much-nooded legislation.
I pledge to do all I can to assist you in its awiA enactment - for my children, my
grandchildren, and yours.
Harry CJoldvv.nter
60
A16 Weoncoay.JulyIS. 1994
i^tie tosiSllTO§t0E |l06t
Barrv Goldtvater
Protection
For Gays
Last year, many who opposed lilt-"
ing the ban on gays in the military-
gave lip service to the American ideal-
that employment opportuniues should
be based on sJoll and performance.
It's just that the military is different.
they said. In avihan life, they'd never
condone discnminaaon.
Well, how's their chance to put up
or shut up.
A bipartisan coalition in Congress
has propoftd legislation to protect
gays against job discnnunation. Con-
gress IS waking up to a reality already
recognued by a host of Fortune 500
companies, including AT&T, Mamott
and General Motors. These busi-
nesses have adopted policies prohibit-
ing discnnunation based on sexual
onenution because they realize that
theu' employees are their most impor-
tant asset.
.-VmerKa is now engaged in a battle
to reduce the defiat and to compete
''There was no gay
exemption in the
right to 'life, liberty,
and the pursuit of
happiness.'"
in a global economy. Job discnmina-
non excludes qualified individuals,
lowers work-force producuvity and
eventually hurts us all. Topping the
new world order means attracting the
best and creating a workplace envi-
ronment where everyone can excel.
Anything less makes us a second-rate
nation. Its not just bad — it's bad
busmess.
But (obrdiscnmination against gays
and lesbians is real, and it happens
every day. Cracker Barrel, a nauonal
restaurant chaui. adopted a pobcy of
blatant discnnunation against em-
ployees suspected of being gay.
Would anyone tolerate polices pro-
hibiting the hiring of African Amen-
cans. Hist>anics or women.'
Today, in corporate suites and fac-
tory warehouses, qualified people live
in fear of losmg their livelihood lor
reasons that have nothmg to do with
ability. In urban and rural commum-
ties, hatred and fear force good peo-
ple from productive employment to
the public dole — wasting their talents
and the taxpayers' money.
Gays and lesbians are a part of
every Amencan family. They should
not be shortchanged in their efforts to
better their lives and serve their com-
munities. As President Clinton likes
to say, "If you work hard and play by ■
the rules, you'll be rewarded" — and
not with a pink slip just lor being gay.
It's tune Amenca realized that .
there was no gay exemption in the .
right to "life, liberty, and the pursuit
of happuiess* in the Declarauon of
Independence. Job djscnmuuuon
against gays — or anybody else — is
contrary to each of these foundmg
pnnaples.
Some will try to paint this as a
liberal or rebgious issue. 1 am a con-
servative Republican, but I believe in
democracy and the separauon of
church and state. The conservative
movement is founded on the simple
tenet that people have the right to
live Ufe as they please, as long as they
don t hurt anyone else in the process.
No one has ever shown me how being
gay or lesbian harms anyone else.
Even the 1992 Repubbcan platform
affirms the prmciple tJut "bigotry has
no place in our soaety."
I am proud ttiat the Republican
Party has always stood for individual
nghts and liberties. The posiave role
of lunited government has always
been the defense ot these fundamen-
tal pruiciples. Our party has led the
way in the fight for freedom and a
free-market economy, a society
where competition rtnrt the Constitu-
tion matter — and sexual orientation
shouldn't.
Now some m our ranks want to
extinguish this torcn. The radical
nght has nearly ruined our party. Its
members do not care enough about
the Constitution, and they are the
ones making all the noise. The party
faithful must not let it happen. Any-
body who cares about real moral val-
ues understands that this isn t about
granting special nghts — its about
protecung basic rights.
It IS for this reason that more than
100 mayors and governors. Republi-
cans and Democrats, have signed
laws and issued orders protecting
gays and lesbians. In tact, nearly half
the slates have provided some form
of protection to gays m employment.
But of course many others have not,
including my own state of Arizona.
It's not going to be easy getting
Congress to provide job protection for
gays. I know that firstfiand. The nght
wing will rant and rave that the sky is
falling. They've said tfut before — and
we're still here. Constitutional conser-
vatives know that douig the nght thing
takes guts and foresight, but that s
why were elected, to make tough
decisions that stand the test oi tune.
My former colleagues have a chance
to stand with civil nghts leaders, the
busuiess community and the 74 per-
cent of .Amencans who polls show
favor protecting gays and lesbians from
job discrimination. With theu vote they
can help strengthen the Amencan
work ethic and support the pnnaples
of the Constitution.
The writer, a /omer senator from
Aruona, was the Republican
nominee /or president tn 1964.
61
WASHINGTON OFFICE
OF THE EPISCOPAL CHURCH
1 10 Maryland Avenue. NE. Suite 309, Washington. DC 20002
Telephone: (202) 547-7300 I-8OO-228-0S15
Statamant of The Most R«v. Edmond L. Browning,
Praaiding Bishop, Tha E^piscopal Chtirch,
On Bahalf o£ tha
Saploynant Non-Olscrimlnation Act
July 19, 1994
On behalf of the Episcopal Church, I am proud and pleased to
join with so many distinguished figures in the religious and
civil rights commiinities in enthusiastic endorsement of S. 2238,
the Employment Non-Discrimination Act of 1994: I offer my thanks
to Senator Kennedy, an unwavering champion of civil rights for
all Americans, for the opportunity to join with him today on
behalf of this legislation. I am happy, also, to acknowledge the
CO- leading role of a devoted Episcopalian and good friend to our
Church's public ministry, Senator Chafee, in bringing forth this
landmark bill.
Since 1976, the Episcopal Church has been committed publicly
to the notion of guaranteeing equal protection for all citizens,
including homosexual persons, under the law. In that year, the
General Convention of the Episcopal Church adopted Resolution A-
71, expressing its conviction that homosexual persons are
entitled to equal protection of the laws with all other citizens
and calling upon society to ensure that such protection be
provided in actuality. The Employment Non-Discrimination Act of
1994 explicitly fulfills that mandate, and I urge Members of
Congress to move swiftly to pass the bill, and the President to
sign it into law.
My warm embrace of this legislation, of course, reflects
more than ray standing as Presiding Bishop of the Episcopal
Church. It represents my deep, personal belief in the instrinsic
dignity of all God's children. That dignity demands that all
citizens have a full and equal claim upon the promise of the
American ideal, which includes equal civil rights protection
against -onfair employment discrimination. For far too long, our
civil rights laws looked the other way with respect to
82-696 - 94 - 3
62
discrimination based on race, gender, religion, national origin,
age, and disability. Fighting to right those wrongs taught us
that the cause of civil rights protection for one is the cause of
such protection for all. Today, so long as some of us remain
siibject to employment discrimination on the basis of sexual
orientation, our system of civil rights protection for all
Americans remains an unfulfilled ideal. The long overdue
protection embodied m this legislation brings that ideal one
significant step closer to reality.
REMARKS BY CORETTA SCOTT KING
PRESS CONFERENCE ON THE INTRODUCTION
OF THE
EMPLOYMENT NON-DISCRIMINATION OF 1994
WASHINGTON DC
JUNE 23, 1994
THANK YOU FOR YOUR GRACIOUS INTRODUCTION. AND I WANT TO
THANK ALL OF THE MEMBERS OF THE PRESS FOR JOINING US TODAY FOR THIS
IMPORTANT PRESS CONFERENCE ON THE EMPLOYMENT NON-DISCRIMINATION
OF 1994.
SENATOR CHAFEE, SENATOR KENNEDY. REPRESENTATIVES EDWARDS.
FRANK. STUDDS AND MORELLA, DISTINGUISHED GUESTS . MEMBERS OF THE
PRESS. TODAY I AM PROUD TO JOIN IN SUPPORTING THIS MUCH-NEEDED
LEGISLATION, WHICH WOULD PROVIDE SOME LONG-OVERDUE PROTECTION TO
AMERICAN WORKERS FROM THE INJUSTICE OF DISCRIMINATION BASED ON
SEXUAL ORIENTATION.
I SUPPORT THIS LEGISLATION BECAUSE LESBIAN AND GAY PEOPLE ARE
A PERMANENT PART OF THE AMERICAN WORKFORCE. WHO CURRENTLY HAVE
NO PROTECTION FROM THE ARBITRARY ABUSE OF THEIR RIGHTS ON THE JOB.
FOR TOO LONG, OUR NATIONAL HAS TOLERATED THE INSIDIOUS FORM OF
DISCRIMINATION AGAINST THIS GROUP OF AMERICANS. WHO HAVE WORKED
AS HARD AS ANY OTHER GROUP, PAID THEIR TAXES UKE EVERYONE ELSE,
AND YET HAVE BEEN DENIED EQUAL PROTECTION UNDER THE LAW.
BY INCLUDING VICTIMS OF DISCRIMINATION BASED ON SEXUAL
ORIENTATION, THIS BILL WOULD DO MUCH TO RECTIFY THIS INJUSTICE IN
63
THE WORKPUCES OF AMERICA. I AM MUCH ENCOURAGED THAT A RECENT
NEWSWEEK OPINION POLL FOUND THAT 74 PERCENT OF THE RESPONDENTS
FAVORED PROTECTING GAY AND LESBIAN PEOPLE FROM JOB
DISCRIMINATION. AND I AM PROUD TO STAND WITH THIS OVERWHELMING
MAJORITY OF AMERICANS WHO RECOGNIZE THE JUSTICE OF THIS CAUSE.
THIS BILL WOULD GRANT THE SAME RIGHTS TO VICTIMS OF
DISCRIMINATION BASED ON SEXUAL ORIENTATION THAT ARE EXTENDED TO
VICTIMS OF RACIAL, GENDER AND RELIGIOUS DISCRIMINATION AND THOSE
WHO HAVE BEEN UNFAIRLY TREATED IN THE WORKPLACE BECAUSE OF THEIR
AGE. ETHNICITY OR DISABILITY. THE BILL PROVIDES NO PREFERENTIAL
TREATMENT OR SPECIAL RIGHTS THAT HAVE BEEN DENIED THESE GROUPS.
I SUPPORT THE EMPLOYMENT NON-DISCRIMINATION ACT OF 1994
BECAUSE I BELIEVE THAT FREEDOM AND JUSTICE CANNOT BE PARCELED OUT
IN PIECES TO SUIT POLITICAL CONVENIENCE. AS MY HUSBAND. MARTIN
LUTHER KING. JR. SAID. "INJUSTICE ANYWHERE IS A THREAT TO JUSTICE
EVERYWHERE." ON ANOTHER OCCASION HE SAID, "I HAVE WORKED TOO LONG
AND HARD AGAINST SEGREGATED PUBUC ACCOMMODATIONS TO END UP
SEGREGATING MY MORAL CONCERN. JUSTICE IS INDIVISIBLE." LIKE MARTIN.
I DONT BEUEVE YOU CAN STAND FOR FREEDOM FOR ONE GROUP OF PEOPLE
AND DENY IT TO OTHERS.
SO I SEE THIS BILL AS A STEP FORWARD FOR FREEDOM AND HUMAN
RIGHTS IN OUR COUNTRY AND A LOGICAL EXTENSION OF THE BILL OF RIGHTS
AND THE CIVIL RIGHTS REFORMS OF THE 1950 AND 60S.
THE GREAT PROMISE OF AMERICAN DEMOCRACY IS THAT NO GROUP OF
PEOPLE WILL BE FORCED TO SUFFER DISCRIMINATION AND INJUSTICE. I
BEUEVE THAT THIS LEGISLATION WILL PROVIDE PROTECTION TO A LARGE
GROUP OF WORKING PEOPLE. WHO HAVE SUFFERED PERSECUTION AND
DISCRIMINATION FOR MANY YEARS. TO THIS ENDEAVOR, I PLEDGE MY
WHOLEHEARTED SUPPORT.
64
STATEMENT OF
THE HONORABLE MARY FRANCES BERRY, CHAIRPERSON
U.S. COMMISSION ON CIVIL RIGHTS
BEFORE THE COMMITTEE ON LABOR AND HUMAN RESOURCES
UNITED STATES SENATE
July 19, 1994
Mr. ■ Chairman and menbars of th* Cooaittaa, I am pl«as«d that I
wa* invitad to testify today on S. 2238, tha Employment Non-
Discrimination Act of 1994 (ENDA) .
As an indapandant, bipartisan, factfinding agancy of the Federal
Government, the Commission is mandated to collect, study and
publish information concerning the denial of equal protection of
the laws because of race, color, religion, sax, age, handicap, or
national origin, or the administration of justice. The
Commission reports its findings and recommendations to the
President and the Congress.
Congress has not included issues relating to the denial of equal
protection because of sexual orientation in tha Commission's
jurisdiction, with respect to equal protection in the
administration of justice, however, the Commission does regard
issues concerning sexual orientation as within its jurisdiction.
Thus, in 1977, the Commission concluded that it could investigate
the "disparate treatment of any class of persons by law
enforcement, corrections, probation and parole, and the courts,
both civil and criminal." (Commission statement, August 15,
1977.)
The Commission is composed of eight memibers, representing a
diverse range of backgrounds, views and talents. My collegues
include: Vice Chairperson Cruz Reynoso, Professor of Law at the
UCLA Law School; Carl A. Anderson, Vice President for Public
Policy with tha Knights of Columbus and Dean, North American
Campus of tha Pontifical John Paul II Institute for Studies on
Marriage and Family; Arthur A. Fletcher, Distinguished Professor
of Business Administration and Director of the International
Institute for Corporate Social Policy at tha University of
Denver; Robert P. George, Associate Professor of Politics at
Princeton University; Constance Homer, Guest Scholar in
Governmental Studies, Brookings Institution; Russell G.
Redenbaugh, Partner and Director of Cooke & Bieler, Inc., and
Chairman and CEO of Action Technologies, Inc.; and Charles Pei
Wang, Secretary, United Way of New York City.
Because of the Commission's independent status, I should note
that my remarks do not necessarily reflect the views of tha
Administration.
While tha Commission does not have a position on the Employment
Non-Discrimination Act of 1994, the Commission has long been
concerned about tha broad issue of employment discrimination. As
I'm sure you know, tha commission is committed to ensuring equal
employment opportunity for all Americans. Under tha overall
rubric of employment discrimination the Commission has conducted
numerous studies over the years. Our studies have examined such
diverse topics as the enforcement of equal employment opportunity
laws (1975, 1987, 1993), fair employment issues facing Asian
Americans (1992) and Latinos in the District of Columbia (1993),
employment discrimination arising from tha Immigration Reform and
Control Act of 1986 (1989), equal employment opportunity in tha
Federal workforce (1993), and the application of civil rights
laws to Congress (1980). Additionally, in our past studies on
the topic of the administration of justice, we have addressed the
concerns of individuals who have alleged police brutality due to
their sexual orientation.
65
Discrimination that arisas from prejudice, bigotry, or pure
ignorance against any member of society, irrespective of the
domain affected,. is unjust and harmful to the directly affected
individual and it undermines the social, economic and political
strength of our Nation. Denial of equal access to employment and
economic opportunities is perhaps the most destructive and
invidious form of discrimination. Those who are immediately
affected are denied the opportunity to realize their full
economic and social potential, and such discrimination erodes an
individual's sense of self-worth and participation in the
community at- large. Discrimination hurts everyone in society by
sapping the productive power of its collective human resources
and the strength that comes from unity and common purpose. As
the United States struggles to compete in the global economy, we
cannot afford to waste the talents and potential contributions of
such a large segment of our population. It is not right and it
is not smart.
This Nation has made great strides in enacting laws that prohibit
discrimination based on color, race, religion, sex, age,
disability, and national origin. The Federal civil rights and
equal opportunity laws are designed to eliminate arbitrary and
discriminatory barriers. Although Federal civil rights law
relating to employment has evolved since the 19th century, the
first major statutes were not enacted until the 1960s, when
Congress passed the Equal Pay Act (1963), the Civil Rights Act of
1964, and the Age Discrimination in Employment Act of 1967, among
other important civil rights laws. These statutes prohibited
discrimination based on race, color, religion, sex, national
origin, and age. The Rehabilitation Act of 1973 extended limited
protection from employment discrimination to disabled persons in
federally assisted programs and the Federal Government. However,
it was not until 1990, with passage of the Americans with
Disabilities Act, that persons with mental and physical
disabilities gained full and comprehensive coverage in employment
and other areas.
Since 1979, bills have been introduced in Congress to extend
civil rights protections to gay men, lesbians, and bisexuals but
none of these bills has been enacted. Representative Ted Weiss
spoke to this situation in March 1991 when he introduced the
Civil Rights Amendments Act of 1991. He stated:
CO]ne of the most fundamental responsibilities of any
democratic government is safeguarding the liberties of
~ its citizens. By historically denying civil rights
protections to gay men and lesbians, our Government
shamefully has neglected that responsibility to an
estimated 25 million Americans. To this day, there
exist no Federal laws and no legal recourse to protect
this minority when they encounter discrimination based
on their private lifestyle ....
In order to establish comprehensive and consistent protection for
the United States workforce against employment discrimination
based on sexual orientation, I believe that a Federal statute,
such as ENDA, needs to be enacted. ENDA would establish a
uniform set of rights and remedies and would bring to bear the
Federal enforcement system of the Equal Employment Opportunity
Commission.
This bill does not create special protections or preferences for
gay people. The drafters of ENOA have addressed the concerns of
religious groups, the military, and others who have expressed
reservations about protecting gay men, lesbians, and bisexuals
from employment discrimination.
ENDA requires that in hiring, promotion, and in other employment
decisions, all workers will be treated equally, without regard to
their sexual orientation or the sexual orientation of people with
whom they associate. As does Title VII, ENDA would apply to
employers, employment agencies, and labor organizations,
including Federal, State, and local governments and the United
States Congress. The EEOC would have the same powers to enforce
66
th« law as it does under Title VII, the Americana with
Diaabilitiee Act. and other equal amploynent statutes. In
addition to discriminatory acts, the bill prohibits retaliation
and coercion against individuals in reaction to or as a result of
enforcing the act's provision.
We note that ENDA does not require employers to extend employee
benefits to an employee's partner. ENDA also exempts from
coverage the military and, as does Title VII, most religious
organizations. It bars the use of disparate impact analysis to
establish a prima facie violation of the act, as is permitted for
other protected classes under Title VII, and expressly prohibits
employers from adopting quotas or giving individuals preferential
treatment on the basis of sexual orientation. ENDA makes the
Federal Government liable for all remedies under the act.
Discrimination against homosexuals is a reality of American life
today. According to preliminary data for 1993 collected by the
FBI pursuant to the Hate Crimes statistics Act, approximately 12
percent of the reported crimes were motivated by sexual
orientation bias. In seven (7) of the states with laws
prohibiting discrimination on the basis of sexual orientation,
civil rights enforcement officials report that the vast majority
of the complaints stem from allegations of discrimination in
employment. A survey of these states showed that 76 percent of
the cases filed since their laws took effect involved employment.
Statistical and case study evidence reviewed by Commission staff
shows that the problem of sexual orientation discrimination in
employment is widespread and, in many instances, egregious. It
aff4,cts individuals across a wide spectrum of occupations,
socioeconomic levels, and geographic locations.
A survey conducted by the American Association of Physicians for
Human Rights reported that 17 percent of lesbian, gay, and
bisexual physicians were refused medical privileges, fired or
denied employment, educational opportunities, or a promotion
because of their sexual orientation. The Los Angeles County Bar
Association Committee on Sexual Orientation Bias issued a report
in June 1994, with the following findings: one in seven
attorneys reported that his or her employer engaged in some form
of anti-gay discrimination in the recruitment and hiring of
attorneys; over half believe that their work environment is less
hospitable to gay attorneys than to heterosexual attorneys; and
gay attorneys are less likely to become law firm partners. A
1992 review of 21 non-random surveys of self -identified lesbians,
gay men, and bisexuals found that between 16 percent and 46
percent of survey respondents reported having experienced some
form of discrimination in employment— in hiring, promotion,
firing, or harassment.
Available statistics underrepresent the actual incidence of
discrimination based on sexual orientation. In many instances,
gay men, lesbians and bisexuals have gone to great lengths to
prevent their employers and coworkers from learning about their
sexual orientation. The fear of discovery or retaliation if they
file a complaint has been cited in many accounts as a primary
reason that these individuals are reluctant to report
discriminatory acts, even in jurisdictions that prohibit such
acts.
Further, there is a perception that gay men and lesbians do not
suffer economically and, perhaps, may do better than their
heterosexual counterparts. But the facts paint a very different
picture. The study by the Los Angeles County Bar Association
shows that among heterosexual lawyers with 10 or more years in
practice, 41 percent earn over $125,000 per year and only 25
percent earn under 375,000, while among their gay peers, the
numbers are almost reversed, with only 27 percent earning over
$125,000, but 44 percent earning under $75,000. A recent study
used a random sample from the United States population to compare
gay and bisexual individuals with heterosexuals having the same
race, sex, education, experience, geographic location and
occupation. In that study by Dr. Lee Badgett, gay and bisexual
67
man earned 11 percent to 27 percent lass than otharwisa similarly
situatad hatarosexual man. Lasbian and bisaxual woman in this
sampla earnad fr^m 5 parcant to 14 parcant lass than hatarosaxual
woman .
As is true of the evolution of civil rights and equal opportunity
laws, attitudes of the American public on discrimination in
employment based on sexual orientation have changed greatly in
recant years. According to Gallup Poll data, in 1977, 56 percent
of those polled believed that homosexuals should have equal
rights in terms of job opportunities. In 1982, the number had
risen to 59 percent. By 1989, 71 percent said they should have
equal rights to job opportunities. In 1992, according to Gallup,
the figure was 74 percent, and in 1993, the positive response was
80 percent. A poll by Sawswaak in 1992 showed 78 percent of
those questioned said homosexuals should have equal rights in
employment opportunities. A 1993 Saw York Timas/CBS poll showed
that 78 percent of those polled also thought gay men and lesbians
should have equal employment opportunities.
As the above data indicates, there has been a dramatic shift in
public opinion in the last 5 years in favor of eliminating
employment discrimination based on sexual orientation. This has
been reflected at the State and local level with the enactment of
a variety of legal prohibitions on discrimination based on sexual
orientation. Eight states have passed laws. Wisconsin, in 1982,
was the first and Massachusetts was the second in 1989.
Connecticut and Hawaii passed laws in 1991; California, New
Jersey, and Vermont in 1992; and Minnesota in 1993. In addition,
there are at least 18 States that have issued Executive Orders
barring discrimination, based on sexual orientation, primarily in
public employment. At least 87 cities or counties have civil
rights ordinances banning such discrimination, and at least 39
cities or counties have issued council or mayoral proclamations
banning sexual orientation discrimination in public
accommodation .
In the eight (8) States with laws that bar sexual orientation
discrimination, both public and private employment are covered.
There are however some differences in other areas of coverage.
For example, Massachusetts, Connecticut, Wisconsin, and Vermont
also bar discrimination based on sexual orientation in public
accommodations, education, housing, credit, and union practices.
other State's coverage is much mora limited. Hawaii only covers
public and private employment. California does not cover
housing, credit and union practices.
City and county ordinances 'are even more diverse in their
coverage. Most cover public employment. Many do not cover
private employment. Enforcement, as would be expected, is also
uneven. Most jurisdictions did not provide for additional
funding for enforcement of the laws, Executive Orders, or local
ordinances. Most have indicated that this was not necessary
because of the relatively small number of complaints filed based
on sexual orientation discrimination. Lass than 5 percent of the
complaints filed in the eight (8) States are on this basis. In
1993, for example, only 2 percent of the complaints filed with
the Massachusetts Commission Against Discrimination involved
employment discrimination based on sexual orientation. In
Wisconsin, the State with the oldest such statute, the number was
only 1.1 percent. There is a concern, however, that despite the
legal protections provided in these eight (8) States, instances
of sexual orientation discrimination in employment are
significantly underreported.
In addition to State and local government action, many
corporations have adopted policies prohibiting employment
discrimination based on sexual orientation. For example, over 25
percent of the Fortune 1000 companies have adopted such policies.
It should also be noted that the AFL-CIO has endorsed ENDA.
Despite the initiatives of State and local governments and
corporations to bar sexual orientation discrimination, the
majority of gay men and lesbians do not have any legal or
68
administrative protections in this area. Further, in the
jurisdictions where there are legal bars to this type of
discrimination, there are only limited protections in terms of
rights and/or available remedies.
I believe that each and every worker in America should be judged
solely on the basis of his or her abilities and job performance.
People should not be prevented from having productive and
responsible careers for irrelevant reasons. Invidious
discrimination in employment is harmful to the individual and to
society as a whole.
The Employment Non-Oiscrimination Act of 1994 is designed to deal
with the serious discrimination being experienced by gay men,
lesbians, and bisexuals, and will advance the cause of equality
of economic opportunity.
Mr. Chairman, this concludes my prepared statement. I will be
pleased to answer any questions you might have.
NATIONAL COMMISSION FOR EMPLOYMENT POUCY
1441 U Street. N.W.. Butte 9000
Washington, O.C. 20005<3512
(202) 734-1 B4S
(a02> 7244019 Fn No.
Statement of Anthony P. Carnevale, Chair,
National Commission for Employment Policy,
.Submitted to the Senate Labor and Human Resources Committee,
In Support of S. 2238,
The Employment Non-Discrimination Act of 1994 (ENDA)
Mr. Chair, thank you for the opportunity to submit this statement for the record in
suppon of S. 2238, the Employment Non-Discnmination Ac: of 1994 (ENDA). a bill that, if
enacted, would extend federal protection against discrimination to employment decisions
bued on sexual orientation. As Chair of the National Commission for Employment Policy
(NCEP5 - an independent federal agency charged with advising both Congress and the
President on employment issues - it is my role to convey the Committee and to the American
people, that employment discrimination in any form is invidious, costly and
counterproductive. The goal of the federal government should be to enhance the individual
dignity and opportunities of all Americans in tlie woricplace. Therefore, I submit this
statement to lend the Commission's support for this legislation by making it abundantly clear
that this bill is not about special rights or even Constitutional rights; what it is about is equal
employment opportunity for all the workers of our nation.
Ample evidence of sexual orientation discrimination in the workplace is easily found.
Surveys have shown that as many as 76 to 81 percent of gay men and lesbians conceal their
69
sexu4l oncmauon at work.' Sixty-six percent of Fortune 500 chief execuuves said in a
1987 Wall Street Jotoul poll that they would hesitate to give a manigemeni job to a
homoiexual person.* Between 16 and 44 percem of gays and lesbians questioned nationally
said they have endured some form of discriminanon in their employment.^ According to one
estimate, roughly 42,000 individuals are dismissed each year in this country on the basis of
sexual orienutioa.'
This is not only an issue of what is morally right, hut also relates directly to the
economic vlabUlty of our couniry. As America approaches the 21st cenmry. our need to be
economically competitive is paramount. By the conservative estimate of one economist
working for the Commission, the American economy may lose nearly SI. 4 billion in work
productivity stemming from sexual orienution discrimination concerns.' Additionally, she
has found that employers bear significant costs - approximately S47.4 million in toul --
attendant to discharges based on sexual orientation discrimination.' In another study she
found that sexual orientation discrimination manifesu itself in reduced earnings for
behaviorally gay, lesbian, and bisexual, full-time workers - with gay/bisexual men earning
from 11 to 27 percent less, and lesbian/bisexual women earning from 5 to 14 percent less
than their heterosexual counterparts.' The obvious conclusion is that bigotry is expensive -
it is wasteful and foolish to harass, exclude and discriminate against qualified individuals.
Moreover, as President Clinton so aptly reminded the American people during the
1992 campaign, this country does not have a person to waste. The testimony presented
below discusses the enviromnent that gay, lesbian, and bisexual workers encounter in the
workplace, and the attendant cost to our economy. It also addresses the urgent need for
pusige of ENDA.
r»M;rtm«narinn in rtm Wnricplaee
The first matter that must be recognized in this dialogue is that discriminauon agauist
gay*, lesbians, and bisexuals in this nation is rampant. Sexual orientation discrimination
doet exist. The debate on cbis proposed legislation should not be mired In the fallacious
assertion that the federal govenmiem is creating a special right for a subgroup of the
population. Nor is this a question of whether rht equal prtjtection clause of the U. S.
Conitinnioo applies to gays and lesbians. Rather the issue is whether gays and lesbians are
endtled to a work environment free of discrimination and harassment.
82-696 - 94 - 4
70
Bectiue homophobia is still widespread and the professional risks are great, the
decliion to be open arwork about one's sexual identity involves a level of courage that is not
required of other workers. For that reason, and because negative stereotypes are pen'asive.
nuny gay men. lesbians, and bisexual people choose to remain "invisible" in the workplace.'
In flict. 1 1992 survey of 1.400 gay men and lesbians in Philadelphia showed that 76 percent
of the men and 81 percent of the women conceal their sexual orienution at work.' They do
not "come out" publicly and acknowledge their sexual orientation for fear of discrimination,
limiting their professional opportunities, or outright firing from their jobs, .\dding to their
stzcM ii the fact that they may be out in other areas of their life, such as with friends and
family; the proccss of needing to swiuh identities continually can be confiising and painful. '°
FeaiB over 'coming out' are reasonably based on attitudes prevalent within the
boaioeu world, as well as on the experiences of gays and lesbians. According to a 1987
Wail Street Jounial poll of Fortune 500 chief executives. 66 percent of the CEOi uxlicated
that they would hesitate to give a management job to a homosexual person." Another
survey, conducted from 1987 to 1988 in Anchorage. Alaska, showed that approximately one
ont of every four employers said that they would either 'not hire" or 'not promote,' and 18
percent would fire, someone they thought to be homosexual."
Ample evideiKe of such discrimiiution across the nation was revealed in a report by
the National Gay & Lesbian Task Force (NGLTF) Policy Instimtc. A review of twenty
surveys conducted across this country between 1980 and 1991 showed that between 16 and
44 percem of gays and lesbians had faced some form of discrimination in employment." A
study coixlucted by the Gay and Lesbian Commumty Action Council (GLAC) for the
Minneapolis-St. Paul area found that 1 1 percent of the gay and lesbian respondents indicated
that they were threatened with job loss due to their sexual orientation; 7 percem had lost
jobs; 5 percent felt that they had been denied employment; and 6 percent had been denied
promotions.'* Another recent survey undertaken in Kansas City by a commission established
by Mayor Emanuel Cleaver showed that a full third of the gay and lesbian workers surveyed
experienced discriminatioa.''
Moreover, by one calculation, using 1990 data and assuming a population of 5 percent
of the workforce (which is a low-end figure and half of many estimates), an estimated 42.000
gays. lesbians and bisexuals are fired each year on the basis of their sexual oriemation.'*
71
The nature of discriminaiion seems to differ according lo job category. White collar
gay, leabian, and bisewial workers tend to face a "lavender glass ceiling." Blue collar
workers ate more likely to be subjected to direct harassment from co-workers as well is find
their chancel for advancement limited.''
r,av anri Tj!<hi)in .Strategic": in fhe Wnrlrplnfr and Their Imoacl
Unlike members of other protected classes, gay workers are camouilaged by gender
and ethnicity. They have the option of whether or not lo indicate their sexual orientation at
work because of fear of harassment and discrimination, most have opted for silence.
Traditionally, most gay workers have used rwo strategies at work: hiding their sexual
orienution by pretending to be heterosexual and adopting avoidance pracuces to keep from
revealing their homosexuality. More specifically, these involve hiding sexual identity by
actively pretending to be heterosexual. To mislead people, some lesbian and gay workers
assume a dual identitj-, inventmg fictitious events about their private lives and attending
organization functions with a member of the opposite sex.
A second strategy is avoiding references to loved ones in order not to disclose sexual
oricnation. Leas extreme and more frequently used than hiding, this straiegj- nuy be
employed in degrees. At one end, a gay worker, invoking a value for privacy and a belief
that diKUHing personal issues at work is unprofessional, will try to avoid the casual, social
conversations that are a natural part of daily work life. Such a worker will appear to be "all
buaiDeu* and aloof. Others try to engage in social conversation, but are uncomfortable aod
evasive about the personal rclauonships (spouses, dates) and plans that form a large pan of
the casual conversation among people.^
These strategics take a toll on both the worker and the organization. Gay workers
face the dilemma of whether to contmue to protect themselves through lying or to come out
at work and face possible consequences. Continual lying undennines self-respect. It
alienates gay workers from their environment, heightens stress levels, and dimmishes their
cffecnveness on the job because a great deal of energy, which could otherwise be applied to
work, is channeled into hiding or avoiding disclosure of sexual Identitj".
As Barr)' Goldwater noted in a recent op^d, it is clear that 'Ulob discriminaiion
excludes qualified individuals, lowers work-force productivity and evenoully hurts us all.'*'
72
The Jtnugies discussed above result in a sizable decrease in pioducuviiy for orgaouicions.
Gay workers form aa imporuiu segment of any orgvuzaiioa. The cost of their giving
anything leu than their best effort is a negative impact on the bottom line. One rough,
conservative calculation made by an economist worldng for the Commission estiminates ttiat
this legislation could help the American economy realize an increase in productivity of gay
and lesbiin employees valued at approxunacely $1.4 billion.^
Moreover, the cost of diminished effecQvenets of 'invisible' gay workers (those
workers overlooked by polls), who do not feel free to communicate openly with co-workers,
will increase as die workplace environment becomes more highly interactive and ai co-
worker relations become more importam to the tuccettful completion of taaks.
Contrary to claims by the Family Research Council" and other opponenu of ENDA,
gays and lesbians are not more affluent than other groups. Rather, their wages actually
suffer by reason of their sexual orientation. In the first economic study of sexual orienution
m
dischfflinatiotL M. V. Lee Badgett, Ph.D., an Assistam Professor in the School of Public
Affain at the University of Maryland at College Park, who also is working for the
Commission this summer, reveals that behaviorally gay, lesbian, and bisexual full-time
employees earn less than heterosexual workers."
Although some smdies - including those cited by the Family Research Council and
other opponems of ENDA - show that gays, lesbians and bisexuals often have higher
incomes than heterosexuals. Dr. Badgett faults these smdies because they: (1) overrepresent
male, white, urban and 'well-educated individuals - primarily by relying on responses from
magazines and newspapers that distribute the surveys -- and therefore exaggerate average
incomes: and (2) do not control for age or education ~ both of which also have a tendency to
raiae wages. ^
Dr. Badges applied econometnc tools developed in the study of the impaa of race
and gender diaciimination on wages to sexual orientation discrimination. Using more reliably
representative dau (the General Social Survey conducted annually by the National Opinion
Research Center) which since 1989 includes information on same-sex experiences, Dr.
Badgett looked at a sample of 1.680 full-time employees. She estimated that gay/bisexual
men earn from 1 1 to 27 percem less ihan heterosexual males (after controlling for education
and occupation). She also calculated that lesbian/bisexual women earn from S to 14 percent
73
less than heierosexual women (after concroUing for education and occupation), or 57.2
percent of a gay/bisexual man's mcome, or 64.8 percent of a heterosexual man's income."
She alio explauu that any differcmul in the household income of gay males is primarily due
tD gender discrimination, by which males enjoy an advantage m wages over women."
(Women currently earn approximately 72 percent of a man's income.)
Dr. Badges also estimates that benefits to employers from this legislation would
inchide reduced costs from the absence of discriminatory firing, which chould amount lo as
much as S47.4 million - estimated at approximately S10.7 million in training savings and
S36.7 million in unemployment insurance savmgs.^'
Fortunately for organizations and for their own well being, gay woricers are
increatmgiy questioning their silence in the workplace on the issue of sexual orientation.
There is, u Ed Mictens pointed out, a growing "awareness that secrecy perpeniaies shame,
thwans the building of community, and feeds prejudice. . . .'" Gay workers have begim to
question the unfairness of the double standard by which many heterosexuals, who honestly
and casually share with co-workezs personal information, nevertheless wonder why lesbians
and gay men feel a need to be open about their personal lives.^
Nearly 25 percent of the top 1(XX) largest corporations in this country, including GM,
IBM, Digital, Microsoft. Eastman-Kodak, Levi Strauss, and AT&T, have non-discnminauon
policies which include sexual orienution.^' Many employers have seen fit to adopt policies
that reach far beyond what this legislation would require to provide benefits for same-sex
domestic panncrs, leaves of absence to care for ill partners or for bereavement."
pTflv and T.eshian T.eyi<laTive Arivunpemr'irt
Workplace homophobia flourishes panly as a result of a lack of federal legal
protection. Unlike other idenuty groups in the workplace, gay workers are not covered by
statutes such as Title VII of the Civil Rights Act of 1964 - which prohibits employment
discrimination based on race, color, sex, religion, and nauonal origin; or the Age
Discrimination in Employment Act ~ which prohibits employment discrimination based on
age; or the recently enacted Americans with Disabilities Act - which prohibits employmem
diacriminaiion based on disabilities.
74
A bill to include sexual orienution as a protected clui has been stalled in Congress
since 1978. Since that tinu, the gay and lesbian communicy has continued iu struggle to
achieve fairness and equality in the workplace. Their effona have met with tubstastial
succetc.
Since 1982. eight lUies - California, Connecticut. Hawaii, Maitachusetu,
Minnesou, New Jersey, Vermont, Wisconsin - and the Distnct of Columbia have passed
laws protecting gays and lesbians from bias in housing and/or employment. In addition,
eleven states - Colorado, Louisiana, Maryland, Michigan, New Mexico, New York, Ohio,
Oregon, Pennsylvania, Rhode Island and Washington - protect lesbian and gay employees in
government service. Similar protection is extended by more than 100 localities nationwide.
While this patchwork covers over 40 percent of the population and most major business
centers, it is, nevertheless, inadequate. And some states •- including only last month. New
York -- hive failed to pass similar proteaion.
Moreover, since 1992, several sutes have encountered fierce challenges to gay rights,
including in the workplace. During the 1992 elections, Colorado debated the merit of
"Amendment 2' - a ballot initiative that barred sate and local governments from prohibiting
discrimination based on sexual orientation. Set out in confiising language, the amendment
wu passed and later struck down as unconstimtional; it is sull the subject of litigation."
Yet, this year five other states - Idaho, Michigan, Nevada, Oregon, and Washington - used
Colorado's amendment as a model for ballot proposals. And similar initiatives have been the
subject of signature drives in five other states -- Arizona, Florida. Maine, Missouri, and
Ohio. Only the Idaho's "Proposition I" and Oregon's 'Measure 9" will be on the ballots this
November.'* Many more localities across the countrj' also face comparable proposals for
county or municipality ordiiunces.
The Fjnplnvment NJon-nkcriminatinn Act of 1994
ENDA was carcftilly drafted to be narrow in scope and remedies. Its objective is not
to give special federal status to gay, lesbian and bisexual workers in America s workplaces.
Rather, the intent of this legislation is to provide gay, lesbian and bisexual workers a fair and
equal opportunity to employment free of harassment and discrimination. It does so by giving
these workers the limited right to challenge an employer's wrongful actions regarding biased
hiring, firing, promotion, or compensation that have injured that employee. Just as a
75
penon's race, color, national origin, sex. age. and disabilicy have no bearing on a person's
ability to get the jol^done, neither does a person's sexiul orientation.
If enacied, this legislation would not present an onerous burden to employers. In fact,
it is drafted more narrowly than Title VII of the Civil Rights Act of 1964, exempting sniall
buiioetses with fewer than 15 employees, religious organizations (iiKluding religious
educational institutions and other non-profit activities), and uniformed members of the armed
services. ENDA would not require -- in iact, it explicitly prohibits - that employers give
preferential treatment based on sexual orientation, including quotas and affirmative action
measures. Nor would ENDA require employers to provide benefits to same-sex domestic
paruiei3. In addition, because the disparate impact claim available under Title vn would not
be available under ENDA, employers would sot be required to justify a neutral practice that
may have tutistically disparate impaa.
Tl>e true issue raised by ENDA it equal employment rights. "Sexual orienution" is
broadly defined in the bill as "lesbian, gay, bisexual, or heterosexual orientation, real or
perceived, as manifested by identity, acts, statements, or associations." Thus, this bill would
protect not only gays and lesbians, but every worlar. For example, a heterosexual arguably
could not be denied employment oecause he or she was not gay or lesbian. Additionally, the
bill arguably would protea that individual from harassing advances by a gay or lesbian
supervisor. While proteaing homosexual or bisexual employees against bias in the
workplace, ENDA would also guarantee that all American workers would be judged solely
on factors that are relevant to their job, such as qualifications or performance. ENDA
merely levels the playing field.
Detractors of the bill frequently anempt to obfuscate this fact by appealing to the
public's concerns over propagatmg "special rights." Indeed, political advisers concede that
ami-gay legislation and amendments have a better chance of gainmg popular support when
posed in terms of creating "special rights" for gays and lesbians, than when descnbed as
concerning discrimiiution based on sexual preference." In contrast, cecem nation-wide polls
show that 74 perceiu of Americans favor protecting gays and lesbians from job
discrimination, and that most are under the misconception that federal law already supply
these groups with equal employment rights.''
76
7
~ Again, I would like to expresi ihe Commusion's strong support for the Employmeai
Non-Diicnmination Aa of 1994. The potential for this bill to do good is tremendous. In
the end. ENDA is concerned not with esubllshing special sutus for gays, lesbians and
Wsexualj. or with promoting so-called "altematlve lifestyles," but rather with elinunating
sexual orientation from the acceptable purview of an employer's considerations for basic
employment decisions, and with preventing on-the-job intimidation and harassment on the
basis of sexual orienution. ENDA would ensure fairness for all of this country's workers.
President Clinton has declared that America does not have a person to waste and that includes
gay, lesbian, and bisexual workers.
Finally, this makes economic sense. By promoting more openness and understanding
in the workplace, tiiis bill would help establish a workplace environment in which employees
could fbcuj on their rcquiremenu of their jobs, rather than issues of their private lives.
m
ENDA. therefore, is a win-win proposition for all involved - every worker bcnefiu from
protection against discrimination, employers save on extra training and tmemployraem
insunnce costs, and the American economy benefits from enhanced productivity.
END NOTES
1. Book Lisa Best Employers of Gays, THE TIME-PICA YIJNE. June 28, 1994,
at F3, quoting a 1992 survey conducted in Philadelphia discussed in a Time Magazine report
by 'WUliam Henry.
2. Glenn Howatt, Gay, Lesbian Workers becoming More Outspoken in the Ttvin
does, STAR TRIBUNE, Septnnber 6, 1992.
3. Lee Badgen, Colleen Donnelly and Jennifer Kibbe. Perxaive Parttms of
Disaimtnatian Against Lesbians and Gay Men: Evidence From Surveys Across the United
States (National Gay &. Lesbian Task Force Policy Instimte, 1992), reviewing twenty surveys
conducted between 1980 and 1991.
4. Dr. M. 'V. Lee Badgea, A Cost/Benefit Analysis of Coming Out (presentation
for OUT Magazine press conference, April 21, 1993).
5. Jd
6. Id
I. Dr. M. 'V. Lee Badgctt, Economic Evidence of Sexual Orienution
Discrimination (University of Maryland, April 1994).
8. Anthony P. Camevale, THE AMERICAN ADVANTAGE (fonhcoming Fail
1994).
9 . Book Lists Best Employers of Gays, supra note 1 .
10. Camevale, supra note S.
II. Howatt, .rt^a note 2.
77
12. Jay K. Braiue. Qosed Doors: Sexual Onenianon Bias in the Anchora^
Hmain^ and Empiavmen f/briuis, m IDENTITY R£PORTS: SEXUAL ORIENTATION
BIAS IN ALaSILK adeniity [ncorponisd. Accoonie. Aluka. 1989), cited m Ue Badgea.
Colloen OoooeUy ud ienmfer Kibbe, .^eruoiiw panems ofDisannanatton Against Lesoians
cmd Gay MtK Evidence from Sirveys Acma the Unitea Ziaus (NanonaJ Giy & Lesbian
Talk Force Policy Itunmw. 1992).
13. Bidgec, Donnelly and Kibbe. supra note 3.
14. Howao, supra note 2.
JS. Andrei Wanen. Hiding in the Corporae Qoset. BUSINESS DATELINE.
Miren 1992.
16. Bidgen. Ji^m note 4.
17. Camevale. swra now 8.
18. Id.: Badten. DonneUy and Kibbe jifjm note 3.
19. Cuaevale. si^jra note 8.
■ 20. Id.
21. Biny Goldwaier. -fai Protection for Gays, THE WASHINGTON POST. July
7. 1994. It A_.
22. Badgeit, supra note 4
23. Homosexudity is mt a Qvil Right. LAS VEGAS REIVEW JOUR>'AL. June
16, 1994. reprmied from In Focus. (Family Reieareh CouncU).
24. Bidgen, si^ra note 7.
li. Id.: .\auontl Orgimuucn of Gay ud Lesbian Sciennsu and Tectmical
Profniiomls, Inc. (NOGLSTP) and Insunue for Gay and Lesbian Strategic Studies. Beyond
Btasea Sanpies: Challenging the Myths on the Economic Status /^'Lesbians and Cay Men
(MircJi 1994).
26. Sadgett. sufra note 7.
27. Id.: Nauonal Orgamzttion of Gay ud Lesbian Sciemms and Technical
Profesiiooals. I.ic. (NOOLSTP) and Inaatute for Gay and Lesbian Strategic Studies. 3evond
Biased Sampies: Chaiiingmg t/v Myths on the Economic Status of Luoians and Gay Men
(Maicii 1994).
28. Badgen. .>-ieranoie 7.
29. Ed Mickeiu, The Invisible A£noruy: Gays atd Lesbiais in the Woriiplaee.
BUSINESS ETHICS. July/August 1990. at 21.
30. Iiy Lucai. Vorldng Uhder Cover: The Professional Lives of Gay Men and
Lemons: Iirtsiieations for Human Resowce Professional, in Invisible Diversity: A Gay and
Utaan Corporate Agtnaa (September 20, 1991) exctrpu from Jay Lucu and James 0.
Woods. WORKING UNDER COVER (forttewung).
3 1 . Human Rights Campaign Fund, Summary of the Employment Non-
Discnminaiioo Act of 1994, S. 2238; £MD Bias: Qvil Rigfvs Based on Sexual pr^'ertnx,
STAR TRIBUNE. July 20. 1994, at 12A,
32. Book JJsu Best Ervlayers of Cays, siwra nocc 1. citing Ed Mlclcens, THE 1(X}
BEST COMPANIES FOR GAY MEN AND LESBIANS (Pocket Bookx).
33. Kim 1. MUli. Few Ann-Gay Measwes HW Apptr on State Ballots in Fall.
ASSOOATED PRESS, July 11, 1994, Monday AM Cycle; Instde PoUties: Gayiiights
Friends and Foes Say Battle's Just Begunng (CNN tslevtsian broadcast, July 12, 1994.
4:47 PM ESD(lnnicnpt * 617-4, ivaiUble of LEXIS. .News Liljniy, Cuinws Hie).
34. Kim I. Milli. Few Ana-Gay Mtaarts Will Appear an State Balloa in Fall.
ASSOCIATED PRESS. July 11, 1994, MotKliy AM Cycle; Inside Polities: Cay Rights
FHatts and Foes Say Battle's Just Begimng (CJNN television broadcast, July 12. 1994,
4:47 PM EST)(transcnpt » 617-4. available of LEXIS, News Ubriry, Curnw} FUe).
33 . Inside Politics: Gay Rights Fntnds and Foes Say Battle's Just Begimng
(CNN teiewiBon broadcast. July 12; 1994. 4:47 PM ESTKstatement by Bill Mdnmiff, a
Republican polUierntranscnpt » 617-4. available of LEXIS. News Library. Cumws File).
36. JIU Lawrence, Wasntngton Today: Another Civd Rights Watershed.
ASSOOATED PRESS, July 14. 1994.
w
78
REUGIOUS ACTION CENTER
OF REFORM JUDAISM
Jtom/tttm/nmfrtM
/••«, Air
c I'in^ Utfv SravW^
AuifM ^jnAfiMff
Senator Edward M. Kennedy, Chairman
Senate Committee on Labor and Human Resources
Washington. DC
c.„. Dear Senator Kennedy:
We write on behalf of religious denominations and human relations organizations
representing millions of religious Americans nationwide. Our organizanons have
endorsed the Employment Non- Discrimination Act (S. 2238) as an unportant eifort
to protect basic civil rights by prohibiting discrimination in the workplace basec on
sexual orientation. For all of us the protection of religious liberty is a paramount
concern, and we are satisfied that ENDA gives proper regard to this concern.
The testimony of Robert H. Knight in opposition to ENDA mischaracterizes the
broad exemption provided by ENDA to religious organizations as "narrow." ENDA
broadly exempts from its scope any religious organization, including religious
educational institutions. The oiily exception to this exemption is for a limited class
of for-profit activities that ore subject to unrelated business income tax under
existing law. There is no reason to believe that the courts would read this exception
so broadly as to swallow up the exemption to which it applies when it is clear that
Congress had a broad exemption in mind in the first place.
Mr. Knight apparently characterizes the exemption as "narrow" because it applies
only to religious organizanons but not to commercial enterprises that are owned by
individuals who may hold certain religious beliefs or may use the proceeds of their
busmcss, in part, to support other organizations that serve a religious mission. .\
general civil rights bill should not exempt individuals because those individuals have
rea-sons based on their religious beliefs for discriminating. There is a substantial
difference between a business operatmg in the arena of commerce and a religious
corporation which exists to serve an explicitly religious mission.
To be sure, the Religious Freedom Restoration Act protects religiously observant
individuals firom the application of a law to them that requires violation of a
religious belief unless the government can show a compelling interest for such
application to them that cannot be satisfied by more narrowly tailored means. The
courts will no doubt be asked in specific cases to determine whether the prohibition
on discrimination on the basis of sexual orientation is this type of compelling
interest. The answer to that question should remain for {he couns to decide on a
case^y-case basis.
Moreover, there is simply no basis for the concern that religious instimtions will
generally be put at risk 5y ENDA. The Supreme Court case to which Mr. Knight
apparently refers denied non-profit status lo a particular non-profit instimiion
because of that institution's policy of racial discrimination. The history of racial
discnminaiion in this country, and the amendments to the Consiiwtion to which that
history gave rise, place that case iii a special context which cannot easily be
extrapolated, .'^d fiirther, that case did not, in the end, compel the msnmuon m
question to violate its religious precepts.
Finally, with respect lo .Mr. Knight's characterizations of how "the great religions
of the world" regard homosexual behavior, there are profound differences in
religious perspectives on this subject Individuals arc, of course, free to beiicvc
what they will. But this does not necessanly mean that they are free to discnrcinate
on the basis of those beliefs.
79
We thank you for the opponunity to be heard on this crucial issue.
Elicfaard T. Foltin
Legislaave Director and Counsel
Amencan Jewish Comnunec
Jane Hull Harvey
Assistant General Secretary
General Board of Church and Society
United Methodist Church
Rabbi David Saperstein
Director, Religious Action Center
Union of American Hebrew Congregations
Patrick Conovcr
Acting Director, Washington Office
United Church of Christ
Marian Nickelson
Acting Director
Lutheran Office for Governmental Affairs
Evangelical Lutheran Church in America
Mary Anderson Cooper
Associate Director
Washington Office
National Council of Churches
Kathleen Montgomery
Executive Vice President
Unitarian Universaiist Association
Jess N. Hordes
Washington Representative
.^nti-Deiamation League
The Commonwealth of Massachusetts
ExEctrnve DepwrrwENT
3TATB HOUae • BOSTON Cin33
WILLIAM r. WELD
AHGeo PAUL caxucxa
uauTSwMT-acnmian
I auuport «quality for all hwmricum and an «nd to dlBeriaiji*tion
bw«d on Msaal oriantacion. PeopLa should noc Iom their jotao
Ijwchho oC factors onralatiwl tia ttaoir verk p*r£9r»Ane«.
fMtl-qmr diserlaixMftloa caa sap varkplaea produeCivity and disrtipt
ttM UvM Of peopl« tfho «iaply wnt to do a good job, pay tixeir
caxsa, and b« ra«ponsil>ltt ammb^m at th« coNaunlty.
gowvi. undoz- rodcral law. dlserlmlnation of this ser^ Im still
Xani, Poopls in »est otatAS can loso th«ir jobs aiaply for bain?
l«»blan or gay. Bat job dlscrlitination oo tha basis of saxoal
arlaatatioa Is wroag.
Z am proud to raprossnt a stats vhich has taksn ths Isad in making
disarisinatioa oa the basis at asxuaX oriancatioa illoqal.
Bsraup* of thsss prineiplss and bssie y»luss. I support an and to
job disoriainatisa oo ths basis of saxaal orientation. I also
support ths r^*T~T* '^ ^bs fsdszal larval, of tum Sa^iloyaiut Bon-
Diserimination Act of ld94. Zt is a halancad approach to anding
unfair diserii^itstioB aqainat hard-i#orfcing Aaaricans.
Slgnateuro:
Data
''lh±hL
80
State or New Jersey
OmoB or Tua CovcsDoa
ChUMl
Tbsmton
08026
(608) 292-6000
CwWiTwe Toce Whtiiun
I an proud to bo the Governor ot a state which recognizes that
"equality" applies Co all citizens unconditiona) ",>'. Ours is a state
ot many faces, but wa are one family. At the heart of this farally
is the principle ot inclusion, meaning that no person is cast aside
or denied equal opportunity for any reason. It Is only when we
recognize that we are all created equal that wa can live and worh
together in harmony.
Currently, under federal law discrimination on the basis of a
person's sexual orientation is leqal. I am pleased that Haw Jersey
already has laws protectinq its gay and lesbian conmunity aqainbt
discrimination. Discriniaation against gays has an adverse effect
on productivity and morale in the workplace. In states that do not
have laws prohibiting discrimination based on sexual orientation,
•members of the gay and lesbian conwunity can be fixed, demoted, lose
job opportunities and employreant benefits based on factors
completeiy unteiatod to their capabilities, experience or worli
pecforniance.
In the spirit of equality, 1 whole-heartedly support passage of the
federal Employment Non-Siscriraination Act of 199'4.
Signature:
P/^.CfT^ab:^ 0..e: ir/n/^1
TBV
AMERICAN BAR ASSOCIATION Governmental AHairs OHice
1800 M Street. N W
Washington, DC :0036-58a6
1202) 331-2200
FAX 1202) 331-2220
August 22, 1994
The Honorable Edward M. Kennedy
Chairroan, Committee on Labor
and Human Resources
United States Senate
Washington, D.C. 20515
Dear Mr. Chairman:
The American Bar Association supports S.2238, the
"Employment Non-Discrimination Act." This civil rights
legislation, which would prohibit discrimination on
the basis of an individuals' s sexual orientation in
hiring, firing, promotion, compensation, and other
employment decisions, is both realistic and promising.
81
It is sensitive to the legitimate concerns of
employers; and at the same time it protects the basic
right of th^ employee to be judged on his or her own
merits, rather than on the basis of irrational
prejudice.
Over the years, and. with some struggle, this nation has
extended employment discrimination protection to
individuals on the basis of race, religion, gender,
national origin, age and disability. This legislation
takes the next necessary step in assuring equal
opportunity and equal justice under the law by
extending this basic protection to a minority group
which has been vilified and victimized — gay men,
lesbians, and bisexuals.
This bill does not create special protections or
preferences for gay people; on the contrary, it
specifically prohibits preferential treatment,
including quotas, based on sexual orientation. It
prohibits an employee from bringing a disparate impact
suit based on sexual orientation, and it does not
require an employer to provide benefits for the same
sex partner of an employee. Finally, in addition to
exempting small businesses with fewer than fifteen
employees, as does Title Vll, it also provides a broad
exemption for religious organizations, including
educational institutions substantially controlled or
supported by religious organizations. This exemption is
much broader than what is found in other employment
discrimination statutes.
The concept of providing discrimination protection
based on sexual orientation is gaining acceptance in
both the public and private spheres. Not only do
public opinion polls consistently show an increasing
consensus among Americans that such prejudice is
intolerable in the workplace, but eight states and
many local governments already have adopted laws and
ordinances prohibiting sexual orientation
discrimination. In addition, the testimony presented to
your Committee on July 29 is filled with examples of
large companies — Fortune 500 companies — which have
expanded their discrimination protection policies to
include sexual orientation and have reported an
increase in productivity and improved employee morale
and comraderie. Indeed, businesses already know what.
Senator John Chafee said so clearly in his written
statement on this issue: "Discrimination is contrary to
our American principles, and only hobbles our efforts
to keep the United States as productive as possible."
It is time for federal legislation which will outlaw
employment discrimination based on sexual orientation
so that every American will have the opportunity to be
judged by the quality of his or her work, and not by
factors that are wholly unrelated to job performance.
The American Bar Association urges your committee to
approve the "Employment Non-Discrimination Act" and
bring it promptly to the Senate floor.
We respectfully request that this letter be made part
of the hearing record.
Sincerely,
Robert D. Evans
82
PRESS STATEMENT
STATEMENT OF RELIGIOUS LEADERS
ENDORSING THE EMPLOYMENT NON-DISCRIMINATION ACT OF 1994
We join together to endorse the Employnjent Non-Discrimination Act of 1994. This bill is
good news for the thousands of Americans denied job opponunities each year because they
are gay, lesbian, or because someone perceives them as such. It is long past time to end this
oppression.
The prophet Isaiah said, "The spirit of the Lord God... has sent me to bring good news to
the oppressed." Those of us who are Jewish remember that this is central to the Exodus of
Moses and to our own identity. Those of us who are Christian remember that Jesus claimed
this passage for his ministry, and it is central to our identity.
No one should have to face discrimination in employment based on who they are. No one
should suffer in the workplace because of their sexual onentation.
We confess that religious communities have contributed to such discrimination, and some
still do. We look forward to the day when such discnminauon is no more, and we count on
early passage of the Employment Non-Discrimination Act to move us in this direction.
James BeU, Executive Director
Interfaith IMPACT for Justice and Peace
Valerie Russell, Executive Director
Office for Church in Society
United Church of Christ
Patricia Rumer, General Director
Church Women United
Robert Glover, Vice President
Homeland Ministries
Christian Church (Disciples of Christ)
W David Sapentein, Director
O Religious Action Center
O Union of American Hebrew Congregations
Tim McElwee, Director
Washington Office
Church of the Brethren
John A. Buehrens, President
Unitarian Universalists Association
Kay Dowhower, Director
Lutheran Office for Governmental Affairs
Evangelical Lutheran Church in America
Jess N. Hordes
Washington Representative
Anti-Defamation League
James A. Hamilton, Director
W Washington Office
2 National Council of Churches
W Jane Hull Harvey, Assistant General Secretary
J5 General Board of Church and Society
p^ United Methodist Church
83
UNIVERSITY OK CAUFORNL^, DA\^S
'■ '^^^^y^
Dt^AKTMeNTOPrSYCMOLOGV DAVIS. CAUFO<IKlA«»l»-IM&
reLETKIHt: 19I 01 752' I ISO
riKX i«IO)T32-2DK7
Hon. Edward Keonedy, Chauperson
Commiaee oo Labor and Human Resources
Han Senate Office Building
Room 440
Washington, DC 20510
Dear SeiiaU3r Kennedy:
I am wTiiiag coDcercing (be wntten testimony of Robert H. Knight of the Family
Research Council. SpeciOcally, 1 would like to otfer my comments about the social science
research relevant to some o{ the points he has raised about homosexuality.
I am a Research Psychologist at the University of California at Davis. However, I am not
writing this letter on behalf of the University of California, but as an individual behavioral
scientist with expertise on the topic of human sexuality.
I received my Ph.O. in 1983 in Psychology, with an emphasis in PerK>nality and Social
Psychology, from the University of California at Davis. I was a Post-Doctoral Fellow in Social
Psychology at Yale Universily from 1983 to 19&5. I have served as a Lecturer and Visiting
Assistant Professor at Yale University and as an Assistant Professor at the Graduate Program in
Social and Personality Psychology at the City University of New York, I am a fellow of the
American Psychological Association and the American Psychological Society; am a member of
numerous other professional organtzatioos; have received several professional awards and
honors; and have written more than three dozen articles and chapters related to the topics of
homosexuality, gender, prejudice, and attitudes, which have been published in various academic
books and Journals. I am sending a copy of my curriculum vitae with this letter.
Deflnltlon of sexual orientation
Mr. Knight charaaenzes the definition of sexual orientation as being so vague as to
include traosvestitism and pedophilia. However, sexual orientation is commonly understood by
social scientists and lay persons alike in a very specific sense. It refers to the gender of one's
sexual or romantic partner, and encompasses only the categories of heterosexual, homosexual,
and bisexual.
For exatrple, the American Heritage Dictionary of the English Language (3rd ed., 1992,
Houghton Mifflin) defines sexual orientation as "The direction of one's sexual interest toward
members of the same, opposite, or both sexes" (page 1654).
The editors of one of the leading anthologies of papers reviewing data on homosexuality
from the social and behavioral sciences define sexual onentation as an "erotic and/or affectional
dlaposition to the same and/or opposite sex' (Gonsiorek &. Weinrich. 1991. page 1).
Furthermore, they caution against confusmg sexual orientation with biological sex (that is,
genetically determined maleness or femaleness), gender identity (the psychological sense of
being male or female), or social sex role (adherence to a culture's standards for masculine or
feminine behavior).
In its entry on sexualiry, the 2nd edition of the Encyclopedia of Psychology (1994)
defines sexual orienution as "the sex of the erotic/love/a£fectional partners a person prefers" (p.
399) and notes the use of the words homosexual, heterosexual, and bisexual In this context. It
explicitly distinguishes transsexualism and traosvestitism from sexual orienutioa
Finally, In an entry that I wrote for the Encyclopedia of Women's Studies (1989, Volume
1), I defined sexual onentation as "an enduring erotic, affectional, or romantic attraction to
individuals of a particular gender" (p. 344) and noted that sexual orientation is usually
cbarBcterized as homosexual or heterosexual, but also can be bisexual.
In summary, the definition of sexual oricniauon is clearly imderstood by the vast majority
of social scientists and, I suspect, by most of the general public as well. It does not encompass
transvestltlsm or pedophilia, as suggested by Mr. Knight.
Homosexoals' "shorter life span"
Mr. Knight mentions a "study" by Paul Cameron of more than 6400 obituaries in
homosexual publications, which "reveals that homosexuals typically have far shorwr life spans
84
than the general population" (p. 5). It is important to recognize that this anicle was published in
the author's own private newsletter rather than a reputable scientific journal, and thus wa* not
subject to scicnufic gcer review.
Based oo Mr. Knight's brief dcsaiption of Mr. Cameron's anicle, I can only conclude
that it is fundamentally flawed. It apparently makes the basic error of assuming that individuals
whose deaths are reported in ihe obituaries of homosexual publications constitute a
representative sample of all gay people. However, this is an untenable assumption. It is widely
recognized by social researchers that the readers of gay publications constitute only one segment
of the gay community, and that many people who consider themselves to be gay or homosexual
do not read such publications at all. Nor are the death notices in such publications exhaustive;
whether or not a gay or lesbian individual's death is listed depends upon whether or not he/she or
her/his survivors choose to list it.
Historically, most gay newspapers and magazine* did not have an obituaries section until
the onset of AIDS, and the bulk of obituaries in such publications now report AIDS-rclated
deaths. Because AIDS particularly affects individuals under age 50, it is to be expected that the
mean age of deaths reported in gay publications' obituaries will be lower than ihat of the general
population. This study appears lo have used such a biased and flawed methodology that it
cannot be taken seriously.
Alcoholism and drug use
In the same section of his testimony, Mr. Knight cites a newsletter (again, not a scientific
study) lo make the point that "homosexuals are more likely [than heterosexuals] to have drug and
alcohol abuse problems." He argues that employers should refuse to hire gay people in order to
avoid the extra Insiuance expense and lost produaivity that results from such homosexual
behavior."
It is true that several researchers (not cited by Mr. Knight) have reported high levels of
alcohol and substance use among the gay men and lesbians Included in their samples. However,
their findings cannot be generalized to the entire gay commumty because the researchers did not
'use representative samples. Indeed, they often recruited their participants at gay bars and clubs,
a strategy that inevitably includes disproportionately large numbers of people with drinking and
substance tise problems. (This is comparable to drawing conclusions about heterosexuals' levels
of substance aouse on the basis of stuclies conducted with the patrons of singles' bars.) We
simply do not know at this time the extent to which gay men and lesbians (compared to
heterosexuals) engage in substance abuse.
We do know, however, that many employers have adopted nondiscrimination policies
and thai some have even provided insurance benefits to employees' same-gender domestic
partners. Apparently, these employers have not expenenccd the sorts of expense and lost
productivity predicted by Mr. KnighL
Another point worth noting is that most researchers who have found high levels of
substance abuse among gay men and lesbians have aiunbuted such behaviors to societal stigma.
That is, they have concluded that substance abuse amoog gay people often reflects an attempt to
cope with the stress created by living in a society that devalues, stigmatizes, and discriminates
against them (e.g., in employment). If anything, the passage of federal legislation to protect
people from employment discrimination on the basis of their sexual onentation should help to
reduce such stigpna, and thereby reduce maladaptive responses to the stress it creates for some
individuals — whose numbers are not now known.
Dtmograpbic characteiisttcs of gay people
Mr. Knight cites findings from marketing research to characterize gay people as affluent
and well educated. The surveys he uses, however, were conducted with nonreoresentative
samples — typically with the readers of gay publications, who (like readers ofthe Walt Street
Journal or the National Review) are not representative of the larger population.
I know of two surveys conducted with represenutive populations of gay people that arc
relevant to Mr. Knight's assertions.
First, exit polls conduaed by Voter Research Se. Surveys after the 1992 elections
(Edelman, 1993) included a question about respondents' sexual orientation. Approximately 3%
of the voters identified themselves as gay/lesbiaa^isexual, which Edelman interpreted to be a
lower bound of the likelv number of such individuals m the larger population of voters. The
average armual income for these men and women tended to be Tower than for the entire sample,
even though the lesbians and gay men tended to have higher educational levels. Gay men and
lesbians also tended to be younger (that Is. older people were less likely to identify themselves as
gay), which may account for some of the income disparity (as people get older, their income
tends to increase). It should be noted that this was a survey of voters, and thus may be biased
toward Including respondents who differ from the general population in some respects (e.g.,
education).
More recently, the 1993 Yankelovich Monitor survey included a Question about sexual
orientation. 5.7% of the sample identified themselves as gay or lesbian. Their mean household
I
85
locome was approximately tbe same as for heterosexuals. However, because the gay men and
lesbians tended to have higher levels of education, this pattern may actually indicate an Income
disparity (that is, gay people were more highly educated than heterosexuals but weren't getting
paid more, on average, even though higher cducahoD is usually associated with higher iocome).
ImmutabllltY of sexual ortentaclon
Mr. Knight asserts that 'the existence of thousands of former homosexuals as well as
bisexuals shows that homosexuality is not immutable or genetically fixed" (p. 5). Despite Mr.
Knight's claims, there simply is no scientific documentation of the existence of large numbers of
such "former homosexuals." Nor is there a scieniific definitioa of what Is meant by a "former"
homosexual. Although some therapists have reported change of sexual orientation ffrora
homosexual to heterosexual) in their clients, critics have detailed numerous ambiguities and
problems with their methods and results (for a review, see Haldemaa, 1991).
For example. In many reports of "successful" conversion therapies, the participants'
initial sexual orientation has not been adequately assessed; many bisexuals have been mislabeled
as homosexuals with the consequence that the "successes" reported for the conversions actually
have occurred among bisexuals who were highly motivated to adopt a heterosexual behavior
pattern. An additional problem is that "success" usually has been defined as suppression of
homoerotic response or mere display of physiological ability to engage in heterosexual
intercourse; neither of these should be equaled with the adoption of a complex set of attractions
and desires that constitute sexual orientation. Many interventions aimed at changing sexual
orientation have succeeded only in reducing or eliminating homosexual behavior rather than in
creating or increasing heterosexual attractions; ibey have, is effect, deprived individuals of their
capacity for sexual response to others. Another problem Is that even these inadequate
operational deTinitions of change often have been assessed only through impressions of therapists
or self repons rather than through verifiable indices (see Coleman, 1982; Haldeman, 1991;
Manin, 1984).
The highly controversial claims by religious organizatioos to have changed homosexuals
to heterosexuals generally have not been documented in such a way as to permit their critical
evaluation (see Haldeman, 1991).
As recently as January of 1990, Dr. Bryant Welch, Executive Director for Profcssiooal
Praaice of the American Psychological Association, suted that "no scientific evidence exists to
support the effectiveness of any of the conversion therapies that try to change one's sexual
orientation" and that "research findings suggest that efforts to 'repair' homosexuals are nothing
more than social prejudice garbed in psychological accoutermenis" (Welch, 1990).
Even If conversion therapies can change sexual onentation in a small number of cases,
the question remains of whether it is ethical to do so. Dr. Gerald Davison (1991), a former
president of the Association for the Advancement of Behavior Therapy, argued that change of
orientation programs are ethically improper and should be eliminated, and that their availability
only confirms professional and societal biases against homosexuality.
In summary, Mr. Knight's assertion about the mutability of sexual orientation is
erroneous. Regardless of its biological or environmeriLal origins, sexual orientation is perceived
by most people to be fixed and unchangeable, an integral part of themselves. Neither
heteroscxuality nor homosexuality represent a conscious choice for most people. Attempts to
change sexual orientation from homosexual to heterosexual that have been documented
sufficiently to permit critical evaluation appear to have been largely unsuccessful.
In summary, Mr. Knight's testimony contains several inaccurate charaaerizations of gay
men and lesbians as well as the nature of homosexuality and sexual orientation. I have tried in
this letter to comment briefly from my perspective as a researcher. Please contaa me if I can
provide any further information or clarification.
Sincerely,
Oregcky M. Herek, Ph.D.
Research Psychologist
86
RefereDces Qttd
Coleraon, E. (1982) Qiangmg approaches to the treatment of homosexuality: A review. In W.
Paul,' J. Weinnch, J. Gonsiorct & M. E. Hotvedt (E4i.\Bomosej3iaUty: Social,
Psychological, and Biological Issues (pp. 81-88). Newbury Parle: Sage.
Davison, G.C (1991). Construciioaisra and morality m therapy for homosexuality. In J.
Gonsiorek &. I. Weinrich (Eds.), Homosexuality: Research implications for public policy.
Newbury Park. CA: Sage.
Edelman, M. (1993). Understanding the gay and lesbian vote in '92. The Public Perspective,
pp. 32-33.
Gonsiorek, J., & Weinrich, J. (Eai.){\99\). Homosexuality: Research implications for public
policy. Newbury Park, CA: Sage Publications.
Haldcman, D.C (1991). Conversion therapy for gay men and lesbians: A scientific examination.
In J. Gonsiorek & J. Weinrich (Eds.), Homosexuality: Research impUcaiions for public
policy. Newbury Park, CA: Sage.
Manin, A.D. (1984). Tbe emperor's new clothes: Modem attempts to change sexual orientation.
In T. Stein & H. Helrick (Eds.), Innovations in psychotherapy with homosexuals (pp. 2A-
57). Washington, DC: American Psychiatric Press.
Welch, B.L. (1990, January 26). Statement of Bryant L. WelcK J.D.. Ph.D. Washington. DC:
Amencan Psychological Association.
1
July 20, 1994
The Honorable Edward M. ICeonedy ^ ^
United State Senate *<-.-i»»
315 Russell Senate Office Building
Washineton, D.C. 20510
Dear Senator Kennedy:
On behalf of the American Psychiatric Association (APA), a medical
specialty society representing more than 38,000 psychiatrists nationwide, I am
writing to commend you for your strong leadership on the proposed
Employment Non-Dlscrimuiation Aa (S. 2238) and to otfer our strongest
support for your efforts to prohibit employment discrimination against persons
on the basis of sexual orientation.
The bin is a long-overdue recogi-ition that many American citizens are
danied equal opportumiy in the workplace - as, indeed, in other areas of life -
- not on the basis of job qualifications or professional capability, but simply
on die basis of their sexual orientation. Despite some changes, lesbians, gay
men and bisexuals remain that segment of society against whom discrimination
is not only socially acceptable but legally sanctioned.
Without question, in banning employment discrimination by the
covered entities on the basis of "sexual orientation," S. 2238 represents a
most significant step forward in according all persons the opportunity to be
judged fairly as individuals. That this legislative battie still must be waged 30
years after the Civil Rlgha A« of 1964 is a measure of the challenge that
American society confronts in ridding itself of costly bias-based
discrimination.
In leading the struggle - and, as you recognize, it will be a struggle -
for this legislation, you courageously declare that this unjust discrimination
must cease and otfer substantial legal remedies to achieve thai goad. Our hope
is that this invidious discrirmnation can someday he reached legally not just in
those entities covered by S. 2238, but also, for example, in the armed forces
where such discrimination continues unabated.
The American Psychiatric Association is pleased to support your
outstanding work against employment discrimination on the basis of sexual
orientation. Widi equality, fairness and tolerance as our foundation, we are
87
strengthened as a nation when we oppose such hateful discrimination. The
proposed Employment Non-Discrimmation Aa is critically important in
ensuring that these tundamentaJ American values are no longer denied to
lesbian, gay and' bisexual citizens.
Sincerely,
Melvin Sabshin. M.D.
Medical Director
MS/klb
YanKeiovicn Partners Inc.
101 Msrntt 7 Corporate Pnrk
NorwalK, CT 06851
203 846 0100
203 845 8200 Fax
o
Yankelovich
Partners
HonoraDle Edward M. Kennedy
Chairman
Senate Committee on LaDor and Human Resources
U.S. Senate
Washington, DC. 20510-6300
Dear Senator Kenneay;
In June of this year, Yankelovich Partners Inc. released a numoer of findings
drawn from a nationally projectable sample of gay and lesbian Americans An
extended version of these findings are available from Yankelovich Partners Inc.
in a report titled: Yankelovich MONITOR'®; Gay/Lesbian Report.
This comprehensive gay/lesbian report explains the significant findings related
to the gay and lesbian population, including its size and income.
What follows here is both a brief background that addresses how the samole
was dravm and why it is more credible than other stuoies that employ a different
methodology, and an excerpt of findings from the Yankelovich MONITOR:
Gay/Lesbian Report.
Background:
The gay/lesbian sample was identified by means of an item in the 1993
Yankelovich MONITOR® (a nationally reoresentative study of Americans aged
16 years and older, conduaed annually since 197'}. Specifically, respondents
were asked to choose from a list of 52 adjectives/phrases, those wmch describe
tnem. This list was presented to them m a spiral binder cf exhibit cards which
the respondent controlled. The interviewer then asked the respondent to read
only the corresponding number beside each item The exaa wording of the Uem
used to .dentify respondents for this analysis was "Gay/homosexual/lasbian
88
It IS important to note three observations:
(1) Samples derwed from gay/lesbian magazine subscription lists or from those
people wno voluntarily return mail questionnaires are neither random nor
representative of the population as a whole, they contain substantial bias. The
Yankelovich MONITOR study, on the other hand, was conductea door-to-door
and is random and nationally representative.
(2) This is a self-identified gay/lesbain sample, and, therefore, may be superior
to a behavioral definition because it makes no presumptions and imposes no
behavioral thresnold as to when one will be considered gay or not.
(3) The structure of the interviewing guaranteed a high level of anonymity for the
respondents. In surveys we have conducted which asked the respondent to
write their name on the questionnaire (a low level of anonymity), response rate
to similar questions designed to identify gays and lesbians was substantially
lower.
Wa have applied rigorous analysis to ensure that the findings in the Yankelovich
study are reliable. As one reooner from CNBC put it, this could be "ihe most
credible study to date."'
Excerpted Findings:
♦ The gay/lesbian sample m this report represents approximately
5% of the US population. This population is similano the
heterosexual population^ in terms of:
♦ Age
♦ Gander
♦ Ethnicity
♦ Occuoation and employment
♦ Income
Income
Income among the gay/lesbian copulation as a whole is sligntly lower
than that of the heterosexual copulation This finding contradicts a
popular myth about the relative affluence of gays/iesPians, one that is
often based on comparisons between general population data and data
collected among readers of panicuiarly upscale gay and lesbian
publications
A more reliable and valid comparison of income is presented in the
following tables, using data which'comoares the general pooulation of
gays/lesbians to the general population of heterosexuals. Overall
income is slightly lower for the gay/lesbian group as a wnole, a difference
that IS dnven pnmanly by the slightly lower earnings of gay men
compared to the heterosexual group. There is no substantial difference
in overall income disthbution between lesbians ana heterosexual
females: in both cases, female income is below that of males.
There is a difference, however, in the earning power of gay males and
heterosexual males. While it is true that some dual-mcome-earning,
predominately white, gay male nousenoids have incomes much greater
than the national average, overall, we found that gay males had lower
personal and household incomes than their heterosexual counterparts
'MARKETWRAP June 9, 1994, CNBC, 5.00 PM EST
' Hetsrosexual population = Total sample minus the gav/lesoian samoie
89
We hope that this non-biased information has bettered your understanding of
the gay/lesbain population. The Yankelovicn MONITOR. Gay/Lasoian Report
includes a host of other information thai v/e can provide to you at your Dehesi.
Rex Briggs
Project Director
End.
cc Tom Flynn, Managing Partner U.S Operations
(k
Family Research Institute, Inc.
Scieruuts Defending Traditional Family Values
Pani Cameron, Ph.D., William Playfiir, M.D, Kirlc Cameton. ?h.D, <k Kcilh At)bo«. J J3.
P.O. Box 2091, Wtitington, D.C 2X1Z (703) 690-&536
July 19, 1.994
Labor and Human I^esourcas Cooanittee
Hart 44 0
Washington, DC 2 0510
I should like to cestiTy regarding S2238, the Employroent Non-
Discriiaination Act of 1994. I vill present eapiricai work that
suggests that those who engage in homosexuality live relatively
brief lives C^ith a median age of death for gays in the early 40' s
and for lesbians in the nid-40's as compared to the early 70' s for
non-gays and late 70' s for non-lasbians) . This maans that a
disproportionate number of homosexuals will not develop into
mature, highly productive workers and professionals. As such
horaosBXual practitioners will disproportionately frequently fail to
justify the training and experience an employer would provide.
Further, I will summarize evidence that homosexuals are more apt to
be absent due to sickness and to succumb to major illnesses while
in employ, both of which drive up costs to the employer. Thus
employment discrimination, where it exists against those who engage
in homosexuality, is both rational and reasonable from a business
standpoint, rather than a prejudicial discrimination requiring
legal remedy.
7
';
Since^i^y, y'.
Paul Cameron
//■
90
Testimony by Robert H. Knight
before the Committee on Labor and Human Resources
July 29, 1994
Senators, thank you for including the Family Research Council in your hearing.
Some people are telling you stones of how they have sulTered because of discrimination, and
these accounts are compelling. No one likes to bring pain to anyone. But I must tell you that
we feel just as strongly about what kind of world we are creating for our children and
families.
.As a pro-family organization, we see the Employment Non-Discnmination .Act as less about
tolerance than about the government forcing acceptance of homosexuality on tens of millions
of unwilling .\mencans. The bill essentially takes away the nghts of employers to decline to
hire or promote someone who openly acknowledges indulging in behavior that the employer
or his customers find immoral, unhealthy and destructive to individuals, families and societies.
Employers would lose the right to include character in their assessment of a prospective
employee, and that would be tyranny. .Martin Luther King Jr. said that a just society would
judge people not by their skin color but by the content of their character, and character
involves behavior. Many employers believe that homosexual behavior '.s immoral and they
recognize thai it has been discouraged in every successful culture in the world.
The issue here is not job discnmination. It is whether pnvate businesses will be forced by
law to accommodate homosexual activists' anempis to legitimize homosexual behavior.
-if this bill becomes law, tor the first time in histop.' .\mencans vviil be told that they must
hire people they believe to be committing immoral acts precisely because they commit those
acts. This interferes with freedom of association, freedom of speech and freedom of religion.
The great religions of the world condemn homosexual behavior in their scriptures. The
sponsors of this legislation purport to tell Orthodox Jews, orthodox Christians, orthodox
.Muslims and members of other faiths that they can no longer allow their religious beliefs to
iniluence their pnvate business decisions. The .Ajnencan Revolution was fought over less
intrusion into the lives of the colomsts.
The bill contains a religious exemption, but f'or-protlt activities by religious organizations are
specifically removed from that protection. It is unlikely that the religious exemption couid
retain its strength because the couns may construe it narrowly, removing many organizations
that may in fact have a religious point of view but don't have a formal relationship with a
church. The Mormon Church would be particularly vulnerable, since the church leadership is
often supported through for-protlt corporations. Bui other religious institutions would be put
at risk, since the Supreme Coun has ruled in other contexts that the beliefs and practices oi
nonprofit institutions must be in accord with federal public policy..
Because of the bill's narrow wording regarding exemptions, institutions ihat couid be tarceted
by .Homosexual activists include summer camps for children, ihe Boy Scouts. Christian
bookstores, religious publishing houses, television and radio stations, and of course, j^v
business with 15 or more e.mployees.
The recently enacted Religious Freedom Restoration .Act allows government to override
religious objections if the state can prove a 'Icompelling interest" in doing so. The bill's
■■findings" could be cued as evidence in efforts to prove 'compelling mterest. "
You have heard hean-wrenching personal stories of discnmination, but how many employers
have you heard from? Perhaps you should invite Bryan Griggs to testily before you.
Mr. Gnggs is president of a small business in Seattle, Washington. Recently, a former
employee of Mr. Gnggs filed a complaint of employment discnmination with the Seattle
Human .Rights Department ' SHRD), stating that .Vlr. Gnggs haa createa a hostile worK
environment" towards homosexuaiity. .Mr. Gnggs' cnmes include playing conservative radio
talk shows that carried his firm's advenisements. posting a lener from a congresswoman
91
regarding his inquiry about her views on ihe military's homosexual exclusion policy, and
having a note on his desk thai he wrote to himself concerning homosexuals and adoption of
children. '
The former employee, John Dill, who was laid off with several other employees, volunteered
for a time and then left of his own accord. He complained to the agency that he tbund Mr.
Griggs' opinions objectionable, but acknowledges that Mr. Griggs was not told that any of
this was objectionable at the time, nor that Mr. Dill was a homosexual. Having had to spend
several thousand dollars defending himself. Bryan Griggs now knows firsthand what "gay job
discnmination" laws mean to employers. .Another former Griggs employee has filed an
affidavit with SHRD stating that as a homosexual, he did not feel harassed in any way by
Griggs' actions during his employment, which approximated the same time that Dill was in
the office.
Griggs' innocence did not protect him from legal harassment of this kind, vhich potentially
threatens every business in Amenca if a federal "homosexual jobs bill" becomes law. Such
legislation is aimed not only at legally preventing businesses from declining to nire or
promote an openly homosexual person, but also at creating 'gay affirmative" work places,
thus interfering with freedom of speech, not to mention freedom of religion and freedom ot
association. This is already occurring in the federal government, where emoioyees are being
subjected to open ndicule of their most deeply held beliefs. .All in the name of tolerance.
Polls show that when the issue is framed as: 'do you think people should be discriminated
against in the work place simply because they are gay'" many Americans say no. To their
credit, .Americans are by and large a generous and tolerant people whose hearts go out to
anybody who seems to be a victim. But when they are asked about specifics, they begin to
understand what legislation like this is all about. When asked whether homosexuals should be
role models for children, a majority say no.' So if you ask the .Ajnerican people whether a
day care center should be forced to employ lesbians, it is unlikely that a majority would say
yes. If you ask them whether Boy Scout troops should be forced to accommodate homosexual
Scoutmasters, it is unlikely that a majority would say yes.
The wording of the bill is designed to accommodate much more than the few specifically
mentioned categories. When you detlne orientation as "real or perceived," you open up a
pansexual pandora's box for litigious groups. Under this bill, a man could one day come to
work in a dress and high heels, stating that his transvestitism is an integral pan of his sexual
orientation. I doubt that any oi the Senators here would allow this type of sexual onentation
to be given free rein on their own staffs. Yet this bill, as we see it, would open you and
every other employer of 1 5 or more people to harassing lawsuits.
.Ajid this fits in well with the strategy that has been openly advertised by homosexual activists.
In the book .After the Ball, by Marshall Kirk and Hunter Madsen. a candid blueprint for
homosexual activists, the authors recommend an incremental approach;
"You get your foot in the door, by being as similar [italics in onginal] as possible: then and
only then— when your one little difference is finally accepted— can you start dragging in your
other peculiarities, one by one. You hammer in the wedge narrow end first [boldface in
original]. As the saying goes. Allow [sic] the camel's nose beneath your tent, and his whole
body will soon follow."^
The authors also have this to say about the homosexual agenda:
"The public should not be shocked and repelled by premature exposiu^e to homosexual
[italics in original] behavior itself. Instead, the imagery of sex per se should be downplayed,
and the issue of gay rights reduced, as far as possible, to an abstract social question.. ..In any
campaign to win over the public, gays must be portrayed as victims in need of protection so
that straights will be inclined by reflex to adopt the role of protector. "'
The authors go on to describe how to use the media to charactenze all opponents as filled
'Anth hate and bigotry,' techniques that we have seen being used to great elTect. panicularly in
some documentaries presented on the Public Broadcasting Service such as One Nation Under
God or National Public Radio's Jn Jesus Same: The Politics of Bigotry.
92
This bill before you will not only affect people who believe that homosexuality is immoral,
unhealthy and destructive to individuals, families and societies. It will entangle businesses of
all types in expensive ISigation.
The Senate version of the bill contains "findings" ihat are designed to be used to bunress legal
briefs in virtually all cases involving homosexual rights, from adoption of children to gay
"mamage." Congress would be giving the homosexual rights lobby a loaaea gun. Ur Defter
vet, 1 Chnstmas tree on which to hang all the ornaments of the homosexual rights movement.
We know from past legislation that protections for religion and against quotas are often
undermined when implementation regulations are wrinen, when the law is enforced, and when
the courts begin interpreting them. It is quite likely that the Equal Employment Opponunity
Commission, which recently sought to create religion-free work places in the name of
freedom of religion, will write broad guidelines surrounding sexual orientation harassment. In
fact, it does not take much imagination to see that the trend would be to mandate not mere
anti-discrimination law but to require employers to create gay-affirmative work places for all
employees, much as several agencies of the federal government have already done
(Transportation, Health and Human Services, Office of Personal Management, Forestry
Service, etc.). Never mind that this would violate the freedom of conscience of millions of
.American taxpayers, much as it is already violating the freedom of conscience of hapless
federal employees.
The bill says that quotas are "prohibited." But such legislation typically leads to unofficial
quotas, as targets of govemmem enforcers begin favoring government-approved groups to
prove that they are abiding by the law.
Inclusion of "bisexuals" implies official sanction for non-monogamous sex. We are no longer
talking about even the rare "monogamous gay couple, ' but people who have sex with both
sexes. This legislation uses the power of law to protect sexual promiscuity. That would be bad
at any time, but it is panicularly irresponsible in the Age of AIDS. The bill's detlnition of
sexual oneniation is deceivingly limited. Some psychologists are now arguing that pedophilia
is a sexual orientation and therefore deserving of legal protection. Next year will it be illegal
for employers to discriminate against child molesters?
Homosexual activists often use anractive libertarian arguments such as: "Sex practices are
private maners. What goes on in the bedroom is of nobody else's concern." That is false, of
course, since two people's sexual behavior affects whole families and even communities. That
IS why societies the world over for thousands of years have by law and custom discouraged
sexuality outside the mantal bond. The "homosexual jobs bill" does just the opposite; :t makes
an employee's sex practices a matter of public concern, and places homosexuality on a moral
par with mamage and family. In fact, it could be argued that it raises it a notch higher,
because there is no specific hiring protection for married people.
The Senate bill notes that "an individual's sexual orientation bears no relationship to the
mdividual's ability to contnbute fully to the economic and civic life of society." This ignores
abundant evidence t'rom major medical journals, such as the New England Journal of
Medicine. The Lancet, the British .Vfedical Journal, Annals of Internal Siedicine. the American
Journal of Public Health and the Journal of the American .Uedical Association, that
homosexual behavior is extremely unhealthy, contributing to the spread of .AIDS, hepatitis A.
3 and C and other sexually transmined diseases, including those afflicting the gastro-intestinal
tract known as "gay bowel syndrome."* A study of more than 6,400 obituaries in homosexual
publications reveals that homosexuals typically have far shoner life spans than the general
population." Other repons indicate that homosexuals are more likely to have drug and alcohol
abuse problems.' It is unl'air to force businesses to pay the extra insurance expense and lost
productivity that inevitably results from homosexual behavior. Most companies are now
promoting healthy behavior among their employees, such as reduction of smoking and alcohol
intake. By the reasoning of this bill, alcoholics should get special protections in hiring and
promotion that are not available to other employees.
Proponents argue that homosexuals are a'discrete and insular minority who have been
excluded t'rom full participation in the political process and have been historically
discnminated against. A closer look reveals that this is simply false.
93
•• Homosexuals display political power far beyond their niunbers. A tiny fraction ot
the population (about 1 percent), homosexuals have one of the largest and fastest
growing Political Action Comminees in the country (The Human Rights Campaign
Fund) and give millions of dollars to candidates, mcluding an estimated S3 million lo
the ClintonVGore campaign. Also, homosexual activists such as Roberta Achtenberg
have been appointed to several high government posts. Homosexual groups have also
been able to commandeer more annual taxpayer funding for .AIDS (the nation s No. 9
killer) than for cancer ("No. 1) or heait disease fNo. 2).
•• .Minoriiv groups share immutable, benign, non-behavioral characteristics such as
race, ethnicity or national ongin. Homosexuals are the only group to claim minority
status based on behavior. There is no reliable scientil'ic evidence showing that
homosexuality is biological in origin.' The existence of thousands ot former
homosexuals as well as biscxuals shows that homosexuality is not immutable or
genetically tlxed.
•• Homosexuals are among the most economically advantaged people m our countr.-
Research by marketing firms shows that as a group homosexuals have higher than
average per-capita annual incomes iS36,800 vs. S12.287),' are more likely to hold
college degrees (59.6 percent vs. 18 percent),'" have professional or managenal
positions (49 percent vs. 15.9 percent)" and are more likeiy to be overseas travelers
and frequent fliers.'" .According to homosexual-marketing specialist Jeff Vitale of
Overlooked Opinions, gays constitute "one of the most lucrative markets in .America
with a tremendous amount of discretionary income.'"^ According to Business Week,
homosexuals are also live times more likely to make over SI 00.000 a year than non-
homosexual Americans."' .American Express spokeswoman Maureen Bailey says
homosexual consumers are "very attractive because they are high-eaming, high-
spending and they travel a lot.""
•• Unlike some genuine minorities, then, homosexuals can hardly be said to be
suffering economic or political deprivation. In the Colorado .Amendment Two case,
which involved a ballot measure which amended the state constitution to prevent
jurisdictions from adding sexual onentation to the list of specially protected minority
classes. Colorado Distnct Court Judge H. Jeffrey Bayless ruled in December ! 993 that
homosexuals do not constitute such a "suspect" class.'
Twenty-one states have laws prohibiting sodomy. This federal legislation is a violation of
their nght to set public policy on some aspects of sexual behavior — a nght enjoyed by ever>'
major civilization and every small tribe in the world.
Conclusion
Homosexuals already enjoy the civil rights that ail Americans have, and do not need or
deserve special legal rights based on sexual behavior. At a time when employers are taking
steps to discourage certain unhealthy behaviors (like smoking) at— and away from—the work
place, it IS irresponsible for the federal government to require them to accommodate and
legitimize other unhealthy behaviors. Legislation to grant such status is less about tolerance
for homosexuals than about govemment-enibrced tyranny over those who believe m sexual
moralitv.
Endnotes
1 r/me/OTN poll conducted June 15-16. 1994 by Yankelovich Partners Inc.. ciied in Time. June 27. 1994. p. 57
2. Marshall Kirk and Hunier Madsen. After the 3all: How America Will Conouer Its Fear i: Haired of Gavs in the
90s. (New York: Doubleday. 1989). p. 146.
3.. ibjd, pp. 178. 183.
4 Ibid, pp. 189- 1 90. The authors openly applaud ways "to vilify those who victimize gays. The public should be
shown images of ranting homo-haters whose associated trans and anitudes aopall and anger .Middle .America. The
94
images might include: • Klansmen demanding ihai gays be slaughtered or castrated; • Hysterical backwoods
preachers, drooling with hate lo a degree ihat looks both comical and deranged....ln TV and print, images )l'
viciimizers can be combine6»with those oltheir gay victims by a method propagandists call the bracket technique.'
For example, .''or several seconds an unctuous beady-eyed Southern preacher is shown pounding the pulpit in rage
against those pervened. abominable creatures.' While his tirade continues over the soundtrack, the picture switches
10 hean-rending photos of badly beaten persons, or of gays who look decent, harmless, and likable, and then we cut
back 10 the poisonous lace of the preacher. The contrast speaks for itself... '
5 See. for instance. V. Beral. et al.. "Risk of Kaposi's Sarcoma and Sexual Practices Associated with Faecal Contact
in Homosexual and Bisexual Men with AIDS.' Lancet. :39. 1992. pp. 632-635; L. .Musick. et al.. AIDS and sexual
behaviors reported by gay men in San Francisco." American Journal of Puolic Health. 75. 1985. pp. 493-496; L.
Corey, and K.K. Holmes. "Sexual transmission of Hepatitis A m homosexual men." V?w England Journal of
Uedictne. 302. 1980. pp -435-438; "The HIV/AIDS Surveillance Repon." U S Deoanmem of Health and Human
Services, Centers for Disease Control. National Center for Infectious Diseases. Division of HIV/AIDS. January 1992.
p 9; H.W Jaffee. C. Keewhan. et al.. "National Case-Control Study of Kaoosi s Sarcoma and Pneumocystis Carinii
Pneumonia in Homosexual Men: Part I. Epidemiological Results," innals of Internal Medtctne. 99 (2). 1983, pp
145-157; Mireya Navarro, Federal OfHcials See Sharp Rise of Hepatitis Among Gay Men. The New York T.mc^.
March 6. 1992.
0 P Cameron. K Cameron. S vVellum. "The Homose\uai Lii"espan ." Family Research Institute. Inc . Washingion.
DC. 1992.
7 According to the National Lesbian-Gay Health Foundation, homosexuals are about three umes as likely to have
an alcohol or drug abuse problem, as cued in "'Gays Are More Prone lo Substance Abuse." Insighi. November 5.
1990
8. See, for instance. William Byne and Bruce Parsons. "Human Sexual Orientation: The Biologic Theories
Reappraised."' Archives of General Psychiatry. Vol. 50, March 1993, pp. ;28-239
9 "'Overview of the Simmons Gay Media Survey," Rivendell Marketing Company, Plainfield, New Jersey, undated.
p.*. See also: Dennis Kneale, "Gay Consumer Spending.' The ^Vall Street Journal. February 10. 1989
10. Ibid. Simmons Survey
II Ibid.
12. Ibid.
13. Sallv Jacobs. "Gav-onenied Ads Follow Consumer Out of the Closet." The Boston Clone. .March ". 1994
14 Julie Tilsner. "Gold in the Gay Games." Business H'cck. July 4, 1994 p, 38.
15 Jacobs, op. cii
16 "Findings of Fact. Conclusions of Law and Judgment.' Evans, et al v Romer. No 92. CV ""223. 1993. p i4
Judge Bay less noted that homosexuals were denied such siatus in Ben-Shalom v .Uarcn. 381 F,2d 4 54 (7th Cir. 19891
ana Hi^h Tech Govs v Defense Inausinat Clearance Offce. 395 F 2d 563 i9th Cir. 1990>. and he wrote "the coun
cannot conclude. ;hat homosexuals and bisexuals remain vulnerable or ooliticaily powerless and m need ol
extraordinary protection from the maioriiarian political r'ocess.
APPENDIX I
EMPLOYMiWT Discrimination Cases
The following case summaries represent an extensive sampling of the types of actions and decisions that have
focused on allegations of employment discnmination based on sexual orientation. Cases involving members of
the U.S. Armed Forces have been excluded. It is organized by cause of action into eight separate sections, each
section including cases principally based on that cause of action. The cases ore summarized in chronological
order within each section, with the most recent cases appeanng first. A ninth section lists cases that have not
yet been analyzed for this study.
I. Cases alleging violations of the U.S. constitution.
.\. General.
I. Burton v. Cascade School District (1975). Peggy Burton was a teacher ai Cascade High School in Oregon.
Dunng her second year of teaching, the Cascade School Board became aware of the fact that Peggy was a
"practicing " lesbian and tired her under an Oregon statute that allowed teachers to be dismissed for "immorality "
Burton challenged her dismissal under 42 U.S.C. § 1983 as a violation of her federal constitutional rights (no
specific right cued).
95
The U.S. Distnct Court for Oregon found ihe statute, which did not detlne immoraliry, to be
unconstitutionally vague. It awarded Bunon monetary relief but refused to reinstate her to her teaching position.
The U.S. Circuit Coun ot Appeals tor the Ninth Circuit attirmed the decision, holding that since Burton was a
probationary employee whose annual contract could be lett unrenewed by the school distnct for any good cause
reason, her legal interest m her position was not strong enough to warrant reinstatement given the disruption it
would cause at the school. The Ninth Circuit expressly declined to address the question of whether or not the
school svstem could retuse to rehire Burton because of her sexual orientation. Cite: Burton v Cascade Sch. Disl.
Union Hi^h Sch. \o 5. 512 F.2d 850 (9th Cir.), cert denied. 423 U.S. 839 (1975).
:. Brass v. Hoberman (1968). Ronald Brass and Fredenck Teper applied for state civil service positions as
caseworkers for the New York City Department of Social Services. Both passed the required written and medical
examinations, but were turned down when their interviews revealed histones of homosexualiry. Brass and Teper
sought a preliminary injunction prohibiting the department from enforcing its policy of not allowing gays and
lesbians to serve as caseworkers, claiming the policy lacked a rational relationship to a legitimate government
interest and thus was arbitrary and copncious discnmination in violation of their federal constitutional nghts (no
specific right citedV
The U.S. District Court for the Southern Distnct of New York denied the preliminarv injunction. The coun
reviewed conflicting psvchiatnc affidavits provided by each side regarding the emotional stability, matunty and
aeneral suitability of gay people for caseworker duties and found that Brass and Teper had not been able to
demonstrate that the Department's actions lacked a rational basis. Cite: Brass v Hoberman. 295 F. Supp. 358
(S.D. NY. 1968).
B. Cases Alleging a violation of the equal protection Clause.
1. Jantz v. Muci (1992). Vernon Jana began work as a part time teacher with the Kansas school system in
1987. During the 1988-89 school year he applied for a full time position and was turned down based on the
recommendation of Muci. the pnncipal at the high school where Jantz worked. Jantz sued Muci in federal court,
claiming his recommendation was based on his belief that Jantz was gay and that the decision mfnnged upon his
federal constitutional right to equal protection of the laws in violation of 42 U.S.C. j 1983.
The distnct court rejeaed Muci's motion for summary judgment, holding the evidence presented by Jantz
was sufficient to present a tnable issue of fact regarding whether a central factor in Muci's decision was his belief
that Jantz was eay. It also rejected Muci's claim for qualified immunity for acts taken as a state oiTicial. holding
that Muci could not be considered to have been acting within the scope of his office because by that time it had
been established as a maner of law that there was no rational basis for blanket sexual onentation-based
employment discnmination. Jantz v Muci, 759 F. Supp. 1543 (D. Kan. 1991).
The U.S. Coun of Appeals for the Tenth Circuit reversed, holding the issue of whether there was a rational
basis for excluding gay people from teaching positions was an open question of law at the time of Muci's
recommendation. Thus, Muci's claim of qualified immunity was valid and he was protected from being sued as
an individual for his aaions. It further held the school distnct could not be held liable since the school board.
not Muci. possessed the final authonty for the decision and the school board had acted unaware of the
discnminatory basis that allegedly influenced Muci's recommendation. Cite: Janti v .Uuci. 976 F.2d 623 (10th
Cir. 1992).
2. Wolotsky v. Huhn (1992). Steven Wolotsky worked as a licensed social worker with Ponage Path Community
Mental Health Clinic, a pnvate, non-profit corporation providing mental health counseling services under contract
to the State of Ohio. He was terminated without warning or hearing when a patient alleged that Wolotsky had
engaged in sex with him. Wolotsky sued his former employer in federal court, claiming his federal constitutional
rights to due process and equal protection were. intringed m violation of 42 U.S.C. j§ 1983 & 1985. The court
granted partial summarv judgment against Wolotsky on all federal claims and dismissed on jurisdictional grounds
several remaining tort claims.
The U.S. Court of Appeals for the Sixth Circuit alTirmed. holding that Portage Path's ties to the state were
sufficiently attenuated that its anions could not be descnbed as taken under the color of state law as required by
§ 1983 and the due process and equal protection clauses of the Fourteenth Amendment. The j 1985 based claim
was rejected on the grounds that, although § 1985 protects against pnvate discnmination. Wolotsky had failed
to allege he was discnminated against because of race or other class-based considerations, as required by § 1985.
Cite: iyoioiskv v Huhn. 960 F 2d 1331 (6th Cir. 1992).
3. Delahoussaye v. City of Neve Iberia (1991). David Delahoussaye was a police otTicer working for the City
of New Ibena who had been laid off for economic reasons. He was scheduled to be reemployed by the city's
police department when the department learned Delahoussaye had been detained previously for allegedly engaging
in homosexual acts in a public restroom. After a heanng, the city found Delahoussaye had engaged in the alleged
acts and removed his name from its civil service reemployment list. Delahoussaye sued the city, claiming that
its actions violated his federal constitutional nghts of due process and equal protection of law.
The U.S. Distnct Court for Louisiana granted summary judgment in favor of the city. The court held that
"rational basis" review was the appropnate standard to apply and that the city s action was rationally related to
a legitimate government interest in protecting the police department from acts prejudicial to the department and
to the public interest. The U.S. Court of Appeals for the Fifth Circuit at"firmed. adopting the distnct court s
reasoning. Cite: Delahoussaye v City of New Ibena. 937 F 2d 144 (5th Cir 1991).
4. .Moshi v. Bally Corporation (1990). Ramona Moshi alleged she was fired from her position with the Bally
Corporation because she was a lesbian. She challenged her dismissal in the U.S. District Court for the Northern
Distnct of Illinois under 42 U.S.C. j§ 1981 & 1983. alleging her dismissal infringed her federal constitutional
rights of due process and equal proteaion and under the First Amendment. The court dismissed her claim,
holding that ^ 1983 and the constitutional provisions she invoked in support of her claim protected only against
state, not pnvate discrimination, and that § 1981 's protections aoplied only to race or ethnicity based
discnmination. Cite: Moshi v Bally Corp.. No. 90 C 788. 1990 U.S. Dist. LEXIS 1838 (N D. 111. Feb. 16, 1990)
5. Rowland v. Mad River Local School Distnct (1983). Marjone Rowland worked as a non-tenured high
school guidance counselor. She was suspended from her position with pay after she told her colleagues of her
bisexuality and disclosed to her secretary the sexual onentation of two students whom she had counseled.
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Rowland was not rehired by the school distna when her contract expired, and she alleged she was construciively
discharged because ot' her sexual orientation. Rowland challenged her dismissal in federal court, claiming she
was depnved of her federal constitutional nghts of equal protection of law and freedom of speech in violation
of 42 U.S.C. § 1983. •
A jury found, inter alia, that: 1) Rowland's firing was at least partially motivated by her statements regarding
her bisexuality; .) these comments did not interfere with her ability co perform her duties or with the operation
of the school, and: 3) she had been treated differently than similarly situated heterosexual employees. Based on
these findings, the distnct court found the school district had violated Rowland's constitutional rights of freedom
of speech and equal protection.
The Court of Appeals for the Sixth Circuit reversed the lower court's equal proteaion decision, holding
Rowland had not demonstrated her sexual onentation was the sole basis for her discharge and that sufficient
justification for her dismissal existed in the jury's finding that the decision not to rehire Rowland was at least
panially motivated by her improper disclosure of her students sexual orientation. It also reversed the distnct
court's holding on freedom of speech, finding that Rowland's statement were private comments to fellow workers,
rather than public statements on an issue of public concern, and thus were not constitutionally protected. Cite:
Rowland v. Mad River Local Sch. Dist.. 730 F. :d 444 (6th Cir. 1984). cerr denied. 470 U.S. 1009 (1985).
C. Cases alleging Due Process Violations.
1. Childers v. Dallas Police Department (1981). Steven Childers sought a promotion from his storekeeper's
job with the City of Dallas Water Department to a higher level position with the Property Division of the City
Police Department. He took the civil service exam for the position twice, scoring higher than any other person
on his first attempt and even higher on the second. He was granted interviews with a police official on both
occasions and each time his application was denied solely as a result of Childers' admission dunng the interview
that he was gay and participated in gay community activities. Childers challenged the department's reliisal to
hire him based on his sexual orientation, claiming such refusal violated his federal constitutional rights of freedom
of expression and association, due process and equal protection.
The U.S. District Court for the Northern Distnct of Texas acknowledged the infringement of Childers' rights.
but found the police department's action was justified by its desire to prevent conflict within the department and
to protect Its public image, and by concerns over Childers ability to handle evidence from cases involving
homosexual conduct. Cite: Childers v Dallas Police Depi. 513 F Supp. 134. (N.D. Tex. 1981), atfd. 669 F.2d
732 (5th Cir. 1982).
2. Ashton V. CivilettI (1979). Donald Ashton worked for the FBI for two years in a clerical position. When the
Bureau learned Ashton was gay, he was forced to resign to avoid being dismissed for cause. He challenged his
constructive dismissal in federal court, claiming the FBI's action violated his federal constitutional right of due
process of law because he was terminated without a hearing and because there was no rational basis for the FBI's
action.
The distnct court rejected Ashton's challenge, holding that his property interest in his employment was not
sufficient to warrant a heanng pnor to dismissal. The U.S. Court of Appeals for the DC. Circuit reversed and
remanded, finding the FBI's treatment of Ashton pnor to his dismissal justified his belief that he would be
discharged only for a work-related cause. Neither court reached the issue of whether or not the FBI had a rational
basis for dismissing Ashton because he was gay. Cite: Ashion v Civiletti. 613 F.2d 923 (DC. Cir. 1979).
D. CVSES ALLEGING RIGHT OF PRIVACY VIOLATIONS.
1. Walls v. City of Petersburg (1990). Teyonda Walls was an administrator with Petersburg's alternative
sentencing program for non-violent cnminals. When the program was shifted from the City Manager's Office
to the City's Bureau of Police, all employees were required to undergo a security check. Walls retijsed to answer
four questions put to her dunng her secunty interview, including one asking whether she had ever had sex with
a person of the same sex. She was dismissed from her position as a result.
Walls, an African American, challenged her dismissal in federal court as racially discnminatory based on the
argument that African Americans were more likely to respond adversely to the four questions she refused to
answer. She based her challenge to the sexual conduct question on the federal constitutional right of privacy and
42 U.S.C. § 1983.
The district court granted summary judgment against Walls on all counts and the U.S. Court of App>eals for
[he Fourth Circuit affirmed, holding (he City had demonstrated a compelling interest in seeking the information
requested by each question. Regarding the sexual conduct question, the court held her constitutional right to
privacy and § 1983 claims were foreclosed by the Supreme Court's decision in Bowers v Hardwick. Cite: iValls
V C/Vv of Petersburg. 895 F.:d 188 (4th Cir. 1990).
2. Dawson v. State Law Enforcement Division (1992). Marvin Dawson was forced to resign from his position
with the South Carolina State Law Enforcement Division (SLED) after a fellow employee discovered him
masturbating in private with her husband. He filed a gnevance with a state gnevance adjudication committee as
required by South Carolina law. The committee found Dawson's termination was based on his alleged attempts
to intimidate the fellow employee following the incident. Dawson challenged the decision in the U.S. District
Court for South Carolina, claiming his termination was actually because SLED believed he was gay and that this
violated his federal constitutional rights of pnvacy and equal protection.
The court found that even if SLED had terminated Dawson for homosexual conduct Bowers v. Hardwick
established that the constitutional right to pnvacy did not extend to such conduct. The court also held that
Dawson's equal protection claim failed because his discharge could be justified as rationally related to SLED's
need to maintain order, discipline and mutual trust within its organization. Cite: Dawson v Stale Law
Enforcemeni Div.. No. 3:91-1403-17, 1992 U.S. Dist. LEXIS 8862 (D S.C. Apnl 3. 1992).
E. CASES ALLEGING FREEDOM OF ASSOCIATION OR FREEDOM OF RELIGION VIOLATIONS.
I. Shahar v. Bowers (1993). Robin Shahar was a recent law school graduate who applied for
and was offered a position with the State of Georgia's Department of Law When Attorney General Michael
Bowers learned that Shahar had engaged in a Jewish mamage ceremony with another woman pnor lo
commencing her position, he ordered the offer of employment withdrawn. Shahar challenged Bower's action in
97
ihe U.S District Court r'or the Northern District of Georgia, claiming it violated her federal constitutional rights
of freedom of association, religion, due process and equaJ protection.
The district court grante* sununary judgment to Bowers on all grounds. The court rejected Shahar s freedom
of association claim, holding that although Bowers' decision restricted her freedom of association, this restriction
was outweighed by the state's interest in not endorsing conflicting interpretations of Georgia law regarding gay
and lesbian relationships and conduct and by the department's need to employ attorneys able to exercise discretion
and judgment in their personaJ lives. It applied the same rationale in rejecting her free exercise of religion claim,
applying a balancing test of the state's interest versus Shahar's interest. Reieciing Shahar s equal protection
claim, the court held Bowers' withdrawal of the olTer of employment was motivated by Shahar's actions
inconsistent with Georgia law. and that this did not constitute discnmination based on sexual onentation. Finally,
the court held Shahar's due process claim was without merit because, except as already noted. Shahar did not
allege that a constitutionally protected interest had been infringed. Cite: Shahar v Bowers. 836 F Suop. 859
(N.D. Ga. 1993).
2. Endsley v. Nats (1987). Pat Endsley worked as an unpaid deputy tor the Saline Countv Sheriffs Department
in Kansas. Shortly atter she began working, rumors began to circulate that she and another temale deputy were
lesbians. As a result of these rumors and a confrontation with the other woman s husband. Endsley either quit
or was told to resign from her position. Endsley sued the County and Sheriffs Depanment sex [not sexual
orientation) discrimination under Title VII. She also claimed her federal and state constitutional rights of freedom
of association had been infringed in violation of 42 U.S.C. § 1983.
The district coun granted summary judgment against Endsley on all federal claims and dismissed the pendent
state claim. In rejecting the Title VII claim, the court held that, if she had been dismissed, u was because of her
sexual onentation. not her gender. Rejecting the constitutional and § 1983 claims, the court found that the
department would have been justified in dismissing her to protect its internal working relationships and external
relationships with the local community. Cite: Endsley v Waes. 673 F. Supp. 1032 (D. Kan. 1987)
F. Cases alleging Freedom of Speech/Expression violations.
1. Aumiller v. University of Delaware (1977). Richard Aumiller was an openly gay faculty member at the
University of Delaware who worked pnmanly as a director and manager in the University s theater and
pertbrming arts division. When AumiUer's contract expired in 1976. the University refused to rehire him because
he had voluntarily participated in a series of articles written about gay life in Delaware and at the University.
The University feared that Aumilller's advocacy would be detrimental to the University's reputation.
Aumiller challenged the Universiry's decision in federal court on the grounds that it violated his federal
constitutional rights of freedom of expression and association. The U.S. District Court for Delaware found that
since the University was unable to show that Aumiller's statements were false, adversely affected his performance
or disrupted University operations, the decision not to rehire him violated his constitutional right of freedom of
expression. The court did not reach the freedom of association claim. The court ordered Aumiller reinstated with
back pay and awarded him compensatory damages for emotional distress. Cite: AumiUer v Univ. at Delaware.
434 F. Supp. 1273 ID. Del. 1977).
2. Gish v. Board of Education (1976). John Gish was a high school teacher in Paramus. New Jersey. Seven
years after Gish joined the high school he began to assume a prominent leadership position in a statewide gay
activist organization. As Gish's activities became increasingly more prominent, the Paramus Board of Education
ordered Gish to undergo a psychiatric examination, invoking a New Jersey statute that gave it broad authority to
order teachers to under physical and mental examinations. Gish retiised, challenging the order as without basis
since the board did not allege he had acted improperly in the classroom or toward any student. Gish also
challenged the order as violating his nghts of freedom ot speech, association and due process of law under the
federal and New Jersey constitutions.
Gish pursued administrative appeals of the decision through the State Commissioner of Education, then
challenged the decision in the Appellate Division of the New Jersey Supenor Court. The coun rejected his
claims, holding the school's responsibility for determining the flmess of teachers outweighed any potential
infringement on Gish's freedom of speech or association and that the specific violations of due process he alleged
-- his inability to cross-examine two psychiatnsts who advised the board that Gish presented a potential mental
health risk and the right to an impartial hearing -- were not applicable to the hearings in question since they
resulted in no penalty or sanction. Gish v Board of Educ. of Paramus, 366 A.2d 1337 fN. J. Super. Ct. App.
Div. 1976), cert denied. 1,11 A.2d 658 (NJ). cert denied. 434 U.S. 879 (1987).
3. .Acanfora v. Board of Education (1974). Joseph .-Vcanfora was transferred from his position as an eighth
grade school teacher to a non-teaching position when his pnncipal discovered he was gay. He challenged his
transfer m federal distnct coun, claiming it violated his constitutional rights (none specifically cited) and thus was
a violation of 42 U.S.C. j 1983. .Acanfora subsequently gave interviews to local and national media
representatives regarding his case and his sexual orientation.
The distnct coun found that transferring .Acanfora before his sexual onentation became widelv known
violated his constitutional rights of due process and equal protection. It declined to order his reinstatement,
however, holding the school was justified in maintaining him in a position where he would not serve as a
potential role model for children once his sexual onentation had become widely known as a result of the case.
.icanfora v Board of Educ. 491 F. Supp. 843 (D. Md. 1973).
The U.S. Coun of Appeals for the Founh Circuit affirmed on different grounds. It found that Acanfora s
public statements were protected by his federal constitutional nght to freely express his views on a public issue,
but thai his intentional failure to list his membership in a gay organization on his application tor a teaching
position was a sufficient basis for his transfer. Cite: Acanfora v Board o) Educ. 491 F 2d 498 (4th Cir), cert,
denied. 419 U.S. 836 (1974).
II. C.vsES BROUGHT Under State Constitiition.s.
A. City of Dallas v. England (1993). 'viica England applied for a position with the Dallas Police Depanment
and was invited (or an interview During the interview England was asked about her sexual onentation and she
responded she was a lesbian. England was told by the interviewer that police depanment hinng policv prohibited
98
ihe hinng of gay men and lesbians because iheir conduct violated provisions ot' ihe Texas Penal Code (hat
prohibiied "deviaie sexual intercourse.' England challenged the depanment's hiring policy and the underlying
criminal statute in state cojjrt. seeking a declaration that they violated her siaie constitutional rights ot privacy,
due process and equal protection. She also sought an injunaion prohibiting the enforcement of the policy and
the cnminal statute.
Relying on the then valid precedent of Texas v Morales. 826 S.W.2d 957 (Tex, App. 1992). (statute
outlawing "deviate sexual intercourse" violates gay people's right of pnvacy under the Texas Constitution), rev <J.
Texas v Morales. 869 S W Id 941 (Tex. I994'> (reversed and remanded with instructions to dismiss on grounds
that the case presented a hypothetical controversy which the courts lacked jurisdiction to adjudicate), the trial
coun granted summary judgment to England on her constitutional claims. The Court of Appeals of Texas rejected
the Cllv s appeal and affirmed the lower court's ruling. The Texas Supreme Court dismissed the City's appeal
on procedural grounds without reaching the merits of the case. Cite: City nf Dallas v England. 846 S W.2d 957
(Tex. Ct. App. 1993).
B. .Merrick v. Board of Higher Education (1992). Harriet Memck was employed by the Slate of Oregon s
Board of Higher Education. Memck. a lesbian, sought a judicial declaration regarding the validity of regulations
promulgated by the Board which forbid its educational institutions trom using sexual orientation as a basis for
employment discrimination. Vlerrick asked the court to determine whether Board's regulations contlicted with
a regulation derived from a ballot measure (Measure 8) that forbid any state official from making it impermissible
to take a personnel action against a state employee based on sexual orientation. She argued that Measure 8 was
itself invalid because it violated the free speech and equal privileges and immunities provisions of the Oregon
Constitution and the free speech and equal protection guarantees of the U.S. Constitution.
The Court of Appeals for Oregon tlrst reviewed the regulations m question and aetermined that an actual
conflict existed, then proceeded to an evaluation of the constitutionality of the Measure 3 derived regulation. It
held that the sweeping nature oi the Measure 8 regulation would have the effect of repressing the speech of gay
men and lesbians under the Board's authonry as well as their ability to associate with other gay and lesbian
people and political groups, and thus was invalid because it violated the Oregon Constitution. None of Memck's
other state and federal constitutional challenges to Measure 8 was reached by the court. Cite: Merrick v Board
of Higher Educ. 841 P.2d 646 (Ore. Ct. App. 1992).
IIL Cases alleging violations of Federal statutes.
A. CASES BROUGHT UNDER 42 U.S.C. § 2000e (Title VII).
•Title VII to the Civil Rights Act of 1964 prohibits discnmination in employment practices by an employer.
Unlike 42 U.S.C. § 1983. it does not require that the discrimination be taken under color of stale law or that the
discrimination violate a consiiluiional or federal law. Its protections are extended to a list of enumerated
classifications of people, specifically prohibiting employment disaiminatton based on race, color, religion, sex.
or national ongin. "
1. Dillon v. Frank (1992). Ernest Dillon worked for the U.S. Postal Service in Michigan. Dillon was subjected
to a three year campaign of harassment by his coworkers because they perceived him to be gay, including verbal
threats and physical assault. Because his supenors were not able to stem the abusive treatment. Dillon quit his
job and filed a sexual harassment claim under Title VII. Dillon also tile a state law claim of intentional intliciion
of emotional distress. The district court dismissed both claims on procedural grounos. It also noted as an
independent, substantive basis for its decision that a cause of action could not be stated under Title VII for
discrimination based on sexual orientation. The U.S. Court of Appeals for the Sixth Circuit affirmed the decision
on all grounds. .Addressing the substantive aspect of the Title VII claim, the court held that Dillon had been
harassed because he was gay, not because he was a man, and that Title provided no protection against
discrimination based on sexual orientation. Cite: Dillon v. Frank, No. 90-2290, 1992 U.S. App. LEXIS 766 (6th
Cir. Jan. 15, 1992).
2. Carreno v. Local Union 226 International Brotherhood of Electronic Workers (1990). J. Carreno was
ajoumevman electrician and member of Local Union 226 of the International Brotherhood of Electronic Workers
(IBEW). In 1987, he quit a job on a construaion site and tiled a gnevance with Local 226, alleging he had been
subjected to verbal and physical harassment because of his sexual orientation. After Local 226 failed to consider
his charges of harassment, he filed a sexual harassment claim against Local 226 with the Kansas Commission on
Civil Rights. The Commission issued a finding that Carreno's complaints lacked probable cause.
Carreno tiled suit in the U.S. District Coun for Kansas, alleging he was the victim of sexual orientation-based
harassment in violation of Title VII and the Kansas Act Against Discrimination (KAD). The court adopiea the
reasoning of DeSamis v Paci/ic Tel. die Tel. Co.. Inc.. 608 F :d 327 i9th Cir. 1979) (Title VII prohibits
harassment based on sex, not sexual orientation), and rejected Carreno's Title VII claim, finding he was harassed
because he was a gov male, not because he was a male. It then applied Ihe same reasoning to his KAD claim,
holding that Act to be directly analogous to Title VII. Cite: Carreno v Local Union No. 226. IBEW. No. 89-
4083-S. 1990 U.S. Disl. LEXIS 13817 (D. Kan. 1990).
3. Williamson v, a,G. Edwards & Sons (1989). Darrell Williamson, an African American, was discharged
from his position with AG. Edwards after eight years of service. A.G. Edwards & Sons alleged he was tired for
disruptive and inappropriate conduct: Williamson alleged he was discharged for discussing the details of his gay
lifestvle at work and that similarly situaied while employees were not dismissed. Williamson challenged his
dismissal in federal court, claiming he was discriminated against based on his race in violation of Title vil and
42 U.S.C. § 1981.
The district court granted summary judgment to A.G. Edwards, holding that Williamson's evidence indicaied
he had been discriminated against because he was gay, not because he was African .American, and that neither
Title VII nor :? 1981 prohibited discrimination based on sexual onentation. The US. Coun of Appeals for the
Eighth Circuit affirmed, holding that Williamson had failed to allege sulTicieni facts to support his contention that
similarly situated white gay men were treated differently. Cite: Williamson v .i.G. Edwards dc Son. 876 F.2d
69 (8th Cir. 1989), cerr denied. 493 U.S. 1089 (1990).
4. Joyner v. .AAA Cooper Transportation (1984). Timothy Joyner. presumably a heterosexual man. worked
as a mechanic for AAA Cooper Transportation (AAA). He complained to the company s chairman after a
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management level male employee allegedly made a sexual advance toward him. Joyner was eventually promoted
to a position as a dnver and was transterred. over his objections, to a division in which the other employee was
his direct supervisor. Joynfr lost all senionty with the transfer and was eventually laid otT during an economic
slowdown. .AAA eventually hired new drivers and rehired all other dnvers laid off when Joyner was laid otf.
but claimed that business was too slow to rehire him.
Joyner filed a charge of sex discrimination against AAA with the Equal Employment Opportunity
Commission (EEOCV The EEOC held there was no probable cause to believe Joyner's charges were valid.
Joyner then sued AAA in the U.S. Distnct Court for the Middle District of Alabama, claiming .AAA's actions
violated Title VII. The court held Joyner's supervisor would not have sexually harassed him if he were not male,
therefore he had discriminated against him based on his gender, m violation of Title VII. Cite: Joyner v AAA
Cooper Transp.. 597 F. Supp 537 (M.D. Ala. 1983). affJ. 749 F :d 732 (llth Cir. 1984V
5. Wright v. Methodist Youth Services (I98I). Donald Wright was terminated after working for three years
for Methodist Youth Services ( M'YS). a private, nonprotlt corporation providing social services for minors in the
State of Illinois. Wright alleged his terminatiotr was the result of his refusal of his boss's homosexual advances
towards him. Wnght sued in the U.S. Distnct Court for the Northern Distnct of Illinois, claiming his discharge
violated Title VII and 42 U.S. C. §§ 1983 & 1985.
The court retiised to grant a motion to dismiss Wright's Title VII claim. It reasoned that Wright sufficiently
stated a gender-based discrimination claim since the specific discnminaiion he alleged would not have been
directed at him if he were a female.
The court dismissed Wright's claim that his Fourteenth Amendment rights under the federal constitution were
infringed in violation of § 1983. holding that MYS's links with the state were not sufficient to qualify its actions
as having been taken under the color of state law. It also dismissed the ij 1985 claim, holding that the substance
of the alleged discnmination was based on the Fourteenth Amendment, which also requires state action. Cite:
iVn^hl V Methodisl Youth Sen/ . 511 F. Supp. 307 (N.D. 111. 1981).
6. DeSantis v. Pacific Telephone and Telegraph (1979). DeSaniis consolidated four cases mvolvmg claims
of employment discrimination by gay and lesbian employees who had been dismissed from private companies
when their supervisors learned of their sexual orientation. All challenged the legality of their dismissals in federal
distnct court, arguing the dismissals violated Title VII and 42 U.S.C. §1985.
The district courts dismissed all claims m each case, pnmanly for failure to state a claim upon which relief
could be granted. The U.S. Court of Appeals for the Ninth Circuit affirmed. It rejected the Title VII claims,
holding Title VH's protections extended only to the classes of people enumerated within the law and that since
sexual onentation was not expressly mentioned. Title VII did not prohibit such discrimination. The court also
rejected the § 1985 claim, holding that gay people did not constitute a federallv protected class for purposes of
§ 1985. Cite: DeSantis v Pacific Tel. and Tel. Co.. 608 F.:d 327 (9th Cir. 1979).
B. Cases Brought Under 42 U.S.C. § 1983 and Other Federal Statutes.
Oriainally enaaed as the Civil Rights Act of 1871. 42 U.S.C. § 1983 allows an action to be brought
whenever an individual is depnved under the color of state law of "any nghts. pnvileges or immunities secured
oy the Constitution and laws." Because its prohibition against the depnvation of an individual's civil rights is
broad, compared to other civil rights provisions. § 1983 is frequently relied upon in employment discrimination
cases based on sexual orientation. Its scope is circumscribed, however, by the fact that a valid § 1983 claim
requires a violation of a constitutional or statutory right action taken under the color of state law
In addition to cases brought under 42 U.S.C. ^ 1983 and Title VII. other statutory challenges have been
brought under 42 U.S.C. 5§ 1981 & 1985(3). Neither of these statutory provisions require a state action. Section
1981 was originally passed to provide slaves with the same legal rights as "white citizens " and provides generally
that "all persons ' within the U.S. are entitled to the "fiill and equal benefits of all laws. " Despite this broad
language, j 1981 has been judicially construed as prohibiting only discnmination based on race or ethnicity.
Section 1985(3) was originally passed in 1861 for similar purposes as § 1981. It prohibits two or more
individuals from conspiring to depnve "any person or class of persons of the equal protection of the laws.""
Section 1985(3). unlike ^ 1981. protects against invidious discnmination based on classifications of persons by
non-racial characteristics, as well as race.
Some cases, primarily security federal civil service and security clearance related cases, also have been
challenged as violations of the Administrative Procedure Act (APA). which requires that federal employment
related decisions not be arbitrary, capncious or unconstitutional.
All claims brought under these federal laws are summanzed in the federal constitutional. Title VII. Civil
Service, secunty clearance, or pnsoner cases sections.
IV. Cases Brought Under State/Municipal Stati;tes.
A. Hanke v. Safari Hair .Adventure (1994). Raymond Hanke quit his job as a hair stylist at Safari Hair
Adventure after his supervisor indicated he would do nothing to stop a managenal level employee from subjecting
Hanke to homophobic remarks. His subsequent application for unemployment compensation was lumed down
by the Minnesota Commission on Jobs and Training (MCJT) on the grounds he did not demonstrate good cause
for quitting. Hanke challenged the commission's decision m the Minnesota Court of Appeals. The court held
that harassment based on sexual onentation provided sufficient cause for quitting one's |ob under Minnesota law
(specific statute/regulation not specified) and ordered that Hanke not be disqualified from receiving unemployment
compensation. Cite Hanke v .Safari Hair Adventure. 512 N.W2d 614 (Minn. Ct. App. 1994).
B. Smedley v. Capps. Staples. Ward. Hastings and Dodson (1993). Lauren Smedley worked as an associate
with the law tirm of Capps et al. .After Smedley was hired, the tirm learned she was a lesbian. Her supervisor
told her the firm did not like employees to bring political or controversial issues into the office and that therefore
she should not discuss her sexual orientation with clients or at tirm social events. Smedley was discharged from
her position shonly after she was quoted in a local news anicle that identified her lirm and the fact that she was
a lesbian.
Smedley challenged the tirms policy and her dismissal as illegal under § 1 101 of the California Labor Code,
which pronibits employers from preventing employees from engaging in politics. The U.S. Distnct Court for the
100
Nonhem District of California denied cross-molions for summary judgment, holding that genuine disputes of
material facts existed as to why Smedley was fired and whether or not the firm's alleged policy violated § 1101.
Cite: Smedlev v Capps. S^ptes. Ward. Hasimfts. A Dndson. 820 F Supp. 1227 fN.D. Cal. 1993)
C. Mo^ilefsky v. Superior Court of Los Angeles County (1993). Wayne Mogilefsky worked as a creative
editor for Silver Pictures, a subsidiary of Warner Bros. Mogilefsky alleged his employer. Joel Silver,
propositioned him on several occasions and that he was told by Icllow employees that previous employees had
been fired for not acceding to Silver's overtures. Mogilefsky sued Silver. Silver Pictures and Warner Bros.,
claiming that he was sexually harassed and discriminated against m violation of California's Fair Employment
and Housing Act (FEHA). The Superior Coun of Los Angeles County dismissed the sexual harassment claim,
holding Mogilefsky had not stated a cognizable claim. The Coun of Appeals for California vacated the Superior
Court's order and directed it to consider Mogilefsky's sexual harassment claim. It held Mogilefsky had stated
a cognizable claims of quid pro quo (sex demanded as acondition of employment) and hostile environment sexual
harassment under the FEHA. even though the FEHA did not explicitly address same-sex sexual harassment. Cite:
Uogiletskv V. Superior Court. 20 Cal. App. 4th (1993).
D. Delaney v. Superior Fast Freight (1993). Jim Delaney was fired from his position with Superior Fast
Freight (SFF), alleaedly tor threatening his supervisor and two coworkers. He subsequently sued on multiple
counts in federal and state court, including a state court claim that he was discriminated against based on his
sexual orientation in violation of California state law. His original complaint failed to allege a violation under
the provision of California's Labor Code that prohibits employment discrimination based on sexual orientation,
and the trial court denied his request to amend his complaint. The court then granted summary ludgment to SFF
on the srounds that the Los Angeles municipal ordinance cited in his complaint in support of his discrimination
claim had been preempted by California s Fair Employment and Housing Act. which it construed as not banning
employment discrimination based on sexual onentation. The California Coun of Appeal reversed the tnal court's
decision and remanded the case for further proceedings, holding the lower coun had ened in not allowing Delaney
to amend his complaint to include the count based on the Labor Code. Cite: Delanev v Superior Fast Freight.
14 Cal App. 4th 590 (1993).
E. Wortman v. Philadelphia Commission on Human Relations (1991). James Worrman tiled a complaint with
the Philadelphia Commission on Human Relations (PCHR), alleging he had been fired from his job because of
his sexual orientation in violation of Philadelphia municipal law. The Commission investigated Wortman s
complaint and informed him by lener it had been dismissed as unsubstantiated. Wortman appealed PCHR's
decision to the Court of Common Pleas of Philadelphia County, which held his appeal was precluded by a
regulation that prohibited appeals of a PCHR determination that a complaint is unsubstantiated. The
Commonwealth Court of Pennsylvania remanded the case, holding Philadelphia municipal law pemiiited appeals
of PCHR dismissals of claims. Cite: Wortman v Commission on Human Relations. 591 A.2d 331 I Pa. Commw.
Ct. 1991).
F. Gay Law Students Association v. Pacific Telephone and Telegraph Co. (1979). Gay Law Students, joined
by four individuals and another pro-gay rights organization, brought this class action under California law seeking
to enioin Pacific Telephone and Telegraph (PT&D trom discnminating against gay men and lesbians in its
employment practices. The suit also sought an injunction requiring the Caiifomia Fair Employment Practice
Commission (FEPC) to act upon complaints of employment discrimination based on sexual onentation brought
under the California Fair Employment Practice Act (FEPA).
The trial court ruled against Gay Law Students on both counts, holding that neither the FEP.A nor the
California Constitution could be construed as prohibiting sexual onentation discnmination in employment. The
California Supreme Court affirmed the ruling as it applied to the FEPC, holding that since the FEPA did not
include sexual onentation among us enumerated categones of individuals protected against employment
discrimination, it could not be construed as prohibiting employment discnmination based on sexual onentation.
It reversed the lower court's ruling as it applied to PT&T. however, holding the equal protection clause of the
Caiifomia Constitution, the California Public Utilities Code and the California Labor Code all prohibited arbitrary
employment discnmination by a public utility. Cite: Gay Law Students Assn v Pacific Tei <& Tel. Co.. 595 P.2d
592 (Cal. 1979).
G. Gaylord v. Tacoma School District No. 10 (1977). James Gaylord was a teacher in Tacoma. Washington
for twelve years. Dunng that time he consistently received favorable evaluations of his work. When a school
official eventually questioned him regarding his sexual onentation. James freely admitted he was gay Within
a month he was fired from his teaching position on the basis of the school distnct's policy of providing for the
discharge of employees for 'immoral" conduct. Washington's Supreme Court upheld the discharge, holding the
school district was justified in finding that homosexuality was immoral and that public knowledge of James status
impaired his etficiency as a teacher. Cite: Gaylord v. Tacoma Sch. Dist. No. 10. 559 P.2d 1340 (Wash.), cert,
denied, 434 U.S. 879 (1977).
V. Cases brought i:>der State Contract, Tort or other causes of action.
A. Hicks V. Arihur (1994). Schree Hicks challenged the termination of her employment with Resources for
Human Development. Inc. on multiple grounds, including that she was wrongfully discharged based on her sexual
onentation. The U.S. Distnct Court for the Eastern District of Pennsylvania dismissed the sexual onentation
related claim, holding Hicks was an employee at will and had failed to demonstrate a clearly mandated public
policy rationale supporting a sexual onentation exception to the employment at will doctrine. Cite: Hicks v.
Arthur. 843 F.Supp 949 (ED. Penn. 1994).
B. Joffe v. Vaughn (1993). Clayton Vaughn worked for KOTV in Oklahoma, tlrst as a television reporter, then
as evening news coanchor. He was fired from his position after KOTV conducted a cursory investigation into
an allegation made by his co-anchors male hair dresser that the hair dresser and Vaughn had a sexual encounter.
Vaughn sued KOTV. several of its officials and the hair dresser in state court, alleging wrongful discharge,
slander, tortious interference with his contract and intentional infliction of emotional distress. Vaughn
subsequently committed suicide. Vaughn's wife, representing his estate, pursued the claim. Only the intentional
intliction of emotional distress claim survived Vaughn's death. The jury found for Vaughn's estate, awarding
a total of S4.000.000 in actual and punitive damages. The Court of Appeals of Oklahoma upheld both the verdict
101
and the damages awarded. Cite: Jolfe v Vaughn. No. 79,505. 1993 Okla. Civ. App. LEXIS 192; 62 O.B.A.J.
1651 (Okla. Ct. App. Oct. ;6. 1993).
C. Collins V. Shell Oil Cqimpany (1991). Jeffet^ Collins was a top level management employee for Shell Oil
Company Through various company statements, personnel policies and practices. Shell repeatedly assured its
employees that they would be dismissed only for good cause. Under California law these assurances were binding
as an implied contract. When Collins' secretary provided his supervisor with a personal document inadvertently
left by Collins' in his office that indicated he was gay, the supervisor and other Shell management personnel
decided to terminate him. Because they lacked good cause. Collins supervisors fabricated an ad hoc negative
evaluation which, without warning, they place in his personnel record. They then dismissed him for allegedly
failing to adequately pert'orm his duties, despite nineteen years of positive work evaluations. Collins sued Shell
on his contract and for mtentionai infliction of emotional distress. The Appellate Department. Superior Court for
Alameda County. California found Collins' supervisors tired him solely because of his sexual onentation, and
awarded him a combined total of S5.323.299 on his contract and tort claims. Shell appealed, but eventually
sealed out of coun. CuUins v Shell Oil Co.. 60 U.S.L.W. 2092 (Cal, App. Dept. Super Ct.. June 13, 1991).
VI. Civil Service Commission Cases.
Until the mid-1970's the Civil Service Commission permined the discharge of gay and lesbian civil service
employees because their conduct was deemed to violate Civil Service Regulations that made immoral" conduct
grounds for dismissal. Subsequent to the Singer case summarized below, those regulations were changed and
"immoral ' conduct was excised from the list of actions that provide grounds for dismissal. Although Chapter 73 1
of the Federal Personnel Manual still provides that a person may be dismissed for "criminal . . inlamous or
notoriously disgraceful conduct'" these terms are no longer construed as allowing dismissal for private homosexual
conduct. As a result, the line of cases involving dismissals from civil service positions because of sexual
onentation ends m the mid-1970's.
A. Singer v. United States Civil Service Commission (1976). John Singer was hired as a clerk in the Seattle
office ot the EEOC. .-Mthough no complaint was made regarding his conduct at work or the performance of his
job. his openness about his sexual orientation and his participation in various gay community and media activities
resulted in his dismissal. Singer challenged his dismissal first within the Civil Service Commission, ihen in
federal court, claiming it violated his federal constitutional rights of freedom of expression and due process of
law. The district coun granted summary judgment to the Commission.
The U.S. Coun of Appeals for the Ninth Circuit affirmed the distnct court's order, holding that the
government's desire to promote the efficiency and protect the public image of the EEOC and the Civil Service
provided a rational basis for the Commission's actions. Singer v. United States Civ. Sen/ Commn. 530 F.2d 247
(9th Cir. 1976) vacated. 429 U.S. 1034 (1977) (vacated at request of Solicitor General after Civil Service
Commission changed the regulation which authorized discnmination based on sexual orientation).
B. Society for Individual Rights v. Hampton (1975). Donald Hickerson was discharged from his clencal
position with the Department of Agriculture when it discovered that he had previously been discharged from the
Army because he was gay. The Society for Individual Rights and Hickerson challenged the Civil Service
Commission's policy of excluding all individuals who had engaged or solicited others to engage in homosexual
conduct, both on the behalf of Hickerson and as a class action.
The U.S. Distnct Court for the Northern Distnct of California granted summary judgment to the Society and
Hickerson and enjoined the Civil Service Commission from enforcing a blanket policy of excluding gay people.
In doing so. it held that the Commission's policy was arbitrary, capncious and lacking a rational basis as required
by the federal constitutional guarantee of due process of law. It rejected the Commission's argument that the
blanket policy was rationally related to a legitimate government interest in protecting the efficiency of the service
from being brought into public disrepute by being associated with homosexual conduct. The court left open the
possibility of applying of this rationale in individual cases if an actual impairment could be demonstrated. The
U.S. Coun of Appeals for the Ninth Circuit affirmed the distnct court's decision not to grant retroactive relief
on the class action, but expressed no opinion on the district court's core holding. Cite: Society for Individual
Rights. Inc. v Hampton. 528 F.2d 905 (9th Cir. 1975). C. Baker v. Hampton (1973). Charles Baker was
discharged from his federal civil service clencal position with the National Bureau of Standards for refusing to
answer questions regarding his sexual orientation. Baker and another individual who was not rehired to a similar
position for the same reason challenged their dismissals in the U.S. Distnct Coun for D.C. The court found that
ihe Civil Service Commission had failed to establish a rational relationship between the questions and the ability
of Baker and Rau to perform their duties and ordered the plaintiffs reinstated to their positions with back pay.
Cite: Baker v Hampton. 6 Empl. Prac. Dec. P9043 (D. DC. 1973).
C. Dew v. Halaby (1962). William Dew worked as an air traffic controller for the Civil Aeronautics Authonty
(CAA). When the CAA learned that a previous employer had dismissed Dew because he had admitted teenage
homosexual conduct and experimentation with marihuana, it dismissed Dew pursuant to Civil Service Commission
regulations allowing an individual to be discharged for "cnminal. infamous, dishonest, immoral or notoriously
disgraceful conduct'" where such a dismissal would promote the efficiency of the service. Dew challenged his
dismissal, pnmarily on the grounds that his dismissal for pre-employment condua was arbitrary and capncious
and thus violated the APA. The U.S. Distnct Court for DC. upheld the Commission s dismissal of Dew The
U.S. Court of Appeals for the DC. Circuit affirmed the decision, finding that dismissal for pre-employment
condua could not be said to be either arbitrary or capricious and thus the Commission was justitled in tlnding
that r.-taming Dew would adversely affea the efficiency of the service. Cite: Dew v. Halabv. 317 F.2d 582 (D.C.
Cir. 1962). cert, dismissed. 379 U.S. 951 (1964).
vii. Cases Involving Revocation or Denial of a Government Security Clearance.
.\. Buttino v. Federal Bureau of Investigation (1992). Frank Bunino was released from his position as a special
agent for the FBI aner he admitted he was gay dunng a secunty investigation. The Bureau claimed Bunino was
deceptive and uncooperative in his investigation and thus was a secuniv nsk - despite twentv vean of service
,n sensitive positions. Buttino challenged his dismissal ,n federal court, alleging that the FBI's justification was
merely a pretext for discriminating against him because of his sexual onentation m violation of his federal
82-696 - 94 - 5
102
consiimiional rights ot freedom of expression and associaiion. due process and equal protection of law.
The U.S. District Court for the Northern District of California granted summary judgment to the FBI on the
due process claim because Ninth Circuit precedent. Dor/mom v. Brown. 913 F 2d 1399 (9th Cir. 1990). ceri.
denied. 1 1 1 S.Ct. 1104 ( I99t), precluded due process challenges of secunty clearance revocations. It also granted
summary judgment against Bunino on the freedom of expression and association claims because he failed to
litigate them. Summary judgment on the equal protection claim was denied on ihe grounds ihat triable issues of
fact remained as to whether Buttinos sexual onentation was the basis for his discharge and. if it was. whether
there was a rational basis for FBI employment discrimination against gay people holding sensitive positions. The
case eventually settled out of court. Buiiino v FBI. 801 F. Supp. 298 fN.D. Cal. 1992).
B. Doe V. Gates (1992). John Doe worked for the Central Intelligence Agency (CIA) for nine years, first as
a clerk-typist, then as an electronics technician. During this time he was consistently rated as an excellent or
outstanding employee. When he voluntanly informed a security officer that he was gay, the CIA placed him on
administrative leave and began a security investigation. He voluntanly submitted to a polygraph examination and
was lold bv the polygrapher ihat the test indicated he had not engaged in sexual relations with foreign nationals
or divulged classified information to a sexual partner. Despite this result. Does eventually was lold that his sexual
onentation made him a secunty risk and he was discharged from his position by direction of [he Direaor of the
CIA acting under the authonty granted him by the National Secunty Act of 1947 to terminate an employee
whenever he deemed it necessary or in the interests of the United States.
Doe challenged his dismissal m the U.S. District Court for DC. charging that it violated CIA regulations,
the APA and his federal constitutional rights to pnvacy, due process and equal protection of law. The distnct
court ordered Doe reinstated to administrative leave status, holding that dismissing Doe without explaining why
his sexual orientation posed a security threat violated procedural guarantees contained in both CIA regulations
and the APA i.Doe v Casev I. (1985)).
The U.S. Coun of Appeals for the D.C. Circuit reversed the distnct court's order and ordered the case
remanded for further proceedings. It held that although no CIA regulation prohibited the Director from
discharging Doe without providing a reason, the lack of a stated reason or a rinding by the distnct court regarding
the Director's reason precluded the appellate court from determining if the Director acted arbitrarily and
capnciously in violation of the APA {Doe v. Casey II. (1986)).
Tlie Supreme Court declined to affirm the appellate court's holding, reasoning that the National Secunry Act
committed the discharge of CIA employees for security reasons to the Director alone, immune from judicial
review except for legitimate constitutional claims. It then remanded the case for consideration of Doe s
alleeayons that his federal constitutional rights were violated {Webster v Doe. (1988))
On remand, the distnct court rejected Doe's equal protection argument, reasoning tnat since gay people were
subject to coercion and were frequently targeted by foreign intelligence services, the CIA's action were justified
by its need to protect legitimate government secunty interests. It found for Doe on his due process claim,
however, finding that a failure to list homosexuality as a dischargeable offense in its regulations or us employee
handbook provided Doe with a legitimate property interest in his job ihat could not be terminated without a
heanng. The nght to pnvacy claim was not adjudicated due to Doe's failure to litigate. {Doe v Webster. (1991)).
The circuit court once again reversed the district coun. reasoning that there was no cognizable due process
violation because Section 102(c) of the National Secunty Act precluded the creation of a legitimate property
interest in employment in Doe by CIA regulations or employee procedures. It also found that Doe had failed to
adequately demonstrate that the CIA had a blanket policy of discharging gay people and therefore no viable
constitutional equal protection claim existed. Cite: Doe v. Gates. 981 F.2d 1316 (D.C. Cir. 1992). cert, denied.
114 S. Ct. 337 (1993).
C. United States Information Agency v. Krc (1992). Jan Krc had a limited Foreign Service appointment with
the United States Information Agency (USIA) and was assigned to work in Yugoslavia. Dunng his post-tour
secunty debner'ing it was established that he had engaged in homosexual conduct with a military attache irom
a non-NATO European country and with two nationals from a communist country. The USIA terminated Krc s
foreign service appointment when its Director of Secunty disapproved him for funher foreign assignments on the
grounds that Krc's lack of judgment made him a security risk. Krc challenged the USIA's action with the Foreign
Service Gnevance Board, which ordered him reinstated. The USIA then brought this action in federal coun.
seeking to set aside the board's order Krc coumerclaimed. challenging the USIA's refusal to carry out the order
as violating his federal constitutional right of due process and equal protection and as being arbitrary and
capncious in violation of the APA.
The U.S. Distnct Court for DC. found that the grievance board lacked the authority to adjudicate Krc's
complaint and granted the USIA's motion to set aside the board's order The coun dismissed Krcs APA-based
claim, holding that the Foreign Service Act under which he was dismissed reserved the power to revoke limited
Foreign Service appointments for secunty reasons to the Secretary of State in a manner which precluded judicial
review for non-constitutional claims. It also held that the USIA had provided Krc with due process, but that even
If it had not. his expectation oi continued employment had not been infringed in a way that presented a
constitutionally cognizable claim because Krc had been transferred to the domestic civil service at a higher salary.
The Coun of Appeals for the DC. Circuit affirmed, but remanded the case with instructions ("or the distnct
court to consider Krcs equal protection claim and a related tort claim that the USIA had inten'ered with Krc s
attempts to gain employment at another government agency.
On remand, the distnct coun found that ICrc had not been denied equal protection. The coun found the
reason he had been dismissed was the security risk posed by the indiscriminate nature of his conduct, not the
gender of his partners. It also dismissed his tortious interference with employment claim, holding that the USIA
had done no more than respond truthfully to the other agency s legitimate query for information relevant to us
security check on Krc. The Court of Appeals affirmed. Cite: United States Info. .Agency v Krc. 989 F.2d 1211
(DC. Cir 1 903).
D. Hieh Tech Gavs v. Defense Industrial Secunty Clearance Office (1990). High Tech Gays brought ihis
action on behalf of three gay men who worked for defense contractors. ,\ll three had been denied Secret or Top
Secret indusmal security clearances because of their sexual orientation. High Tech alleged that the respondents
(DISCO) automatically subjected gay and lesbian applicants to expanded secunty investigations and frequently
103
rejected (heir applications because DOD secunty regulations defined homosexual conduct as 'deviant" sexual
behavior ihat rendered an individual susceptible to coercion or blackinail. High Tech challenged these policies
as violating gay individuate' federal constitutional rights of equal protection, due process and freedom ot
association.
The US. District Court for the Northern Distnct of Caliromia granted summary judgment for High Tech Gays
on Its equal protection and freedom of association claims. The court held gay people constituted a frequently
discriminated against "quasi-suspect" class of people who had a hindamental right to engage in homosexual
activiry. except sodomy per Bowers v Hardwick. The court found DISCO'S policies were based on irrational
prejudice and outmoded stereotypes which were not even rationally related to a legitimate government interest.
The court reiecied DISCO's arguments that homosexual activity: I) was criminal conduct: 2) was indicative of
heightened potential for emotional instability; j) rendered gays .nnd lesbians subiect to blackmail or coercion.
TTie court reiected High Tech's due process claim, interpreting it as a procedural due process claim which failed
because applicants for clearances were given a sufTiciem opportunity to argue and appeal their decisions
administratively
■The U.S. Coun of Appeals for the Ninth Circuit reversed the distnct court and ordered that summary
judgment be granted against High Tech Gays. It held that gay people did not meet all the criteria required to be
considered a quasi-suspect class since the court considered being gay to be a behavioral rather rhan immutable
characteristic and because it found gay people were not politically powerless. It further neld the evidence
presented by the government that foreign intelligence services targeted gay individuals provided a rational basis
for automatically requiring expanded security investigations of gay and lesbian applicants. Cite: W/?/i Tech Govs
V Defense Indus. Sec. Clearance Office. 895 F.2d 563 (9th Cir. 1990).
E. Dubbs v. Central Intelligence Agency (1990). Julie Dubbs was an open lesbian working for a defense
contractor. Dubb's employer requested her securiry clearance be upgraded so she might have access to highly
classified intelligence information. This request was turned down by the Central Intelligence Agency (CIA) on
the grounds that Dubbs' failure to disclose her sexual orientation m previous securiry investigations indicated a
perception of vulnerabiliry and a practice of deception that made her a secunty risk. Dubbs challenged the
decision in federal court, alleging the CIA employed a blanket policy of considenng homosexual conduct to be
either a disqualifying or negative factor in evaluating clearance requests, and that this violated the APA as well
as her federal constitutional nghts to freedom of association, due process and equal protection of law.
The distnct court granted summary judgment to the CIA on ail counts, holding Dubbs' evidence did not
present a tnaole issue of fact as to whether the CIA had such a blanket policy, and that the provisions of the APA
did not apply to CIA decisions regarding secunty clearances.
The US. Circuit Court of Appeals for the Ninth Circuit reversed and remanded, finding that Dubbs had
presented sufficient evidence of a potentially unconstitutional blanket CIA policy discriminating against gay
people in granting secunty clearances to survive summary judgment. The court affirmed the district court's ruling
that the APA's arbitrary and capncious standard did not apply to CIA secunty clearance decisions, holding the
authority to make these decisions had been statutonly committed to the CIA's discretion by executive order
(Executive Order 10865) and therefore its decisions could only be reviewed for constitutional claims.
On remand, Dubbs' amended her complaint to charge: I) the CIA's alleged blanket policy violated its own
procedures for reviewing clearance applications and thus its decision was arbitrary and capricious in violation of
the APA, and: 2) the policy violated her constitutional right to equal protection and freedom of association. The
court dismissed the ,APA claim, holding the CIA acted in accordance with its regulations and that the appellate
court's opinion foreclosed the question of whether those regulations could be reviewed judicially on a non-
constitutional claim. The court rejected a motion to dismiss the constitutional claims, holding that as a maner
of law they had stated a claim upon which relief could be based and therefore should be allowed to proceed.
Cite: Dubbs v CIA. 769 F Supp. 1113 (N.D. Cal. 1990).
F, Doe V. Cheney (1989). John Doe was a cryptographic material control technician with the National Secunty
Agency iNSA) for sixteen years. His Top Secret intelligence clearance was revoked and he was dismissed for
cause after he admined in a security interview that he had engaged In gay relationships with foreign nationals
during that time. He was not provided an administrative hearing at which he could challenge the grounds for his
dismissal, but he was allowed to appeal his decision to an NSA board of review and the Director of the NSA.
The board and the Director both affirmed his dismissal on the grounds that his liaisons with foreign nationals,
not his sexual onentation, rendered him a secunty nsk. Doe challenged the dismissal in federal court, claiming
that It violated NSA regulations requinng that employees dismissed for national secunty reasons be provided a
heanng, as well as his federal constitutional rights of due process and equal protection.
The U.S. District Court for DC. rejected Doe's claims, holding that it was within NSA's discretion to pursue
either its routine dismissal procedures, as it did with Doe. rather than its power to dismiss an employee summanly
tor national secunry reasons, it also held that even if the agency had dismissed Doe solely because of his sexual
onentation. the dismissal would be rationally related to a legitimate government interest in maintaining national
secunty {Doe v Weinberger).
The U.S. Coun of Appeals for the DC. Circuit reversed, holding that federal law (5 U S.C. § 7532) required
that an NSA employee dismissed for secunty reasons llrst be given an impartial hearing to review and challenge
the charges, unless a specific determination by the Secretary of Defense tound that such a hearing would be
detrimental to national security.
TTie Supreme Court reversed the appellate court, holding that § 7532 was a discretionary removal procedure
which was not required since Doe was dismissed under ordinary rather than summary dismissal procedures. It
remanded the case for consideration of Doe's constitutional claim as well as whether NSA had violated its own
regulations iCurlucci v Doe).
On remand, the appellate court found that Doe's terminaiion had been in accordance with NSA's regulations
and that the procedures followed in terminating DOE had been sutTicient to demonstrate that his claim that his
dismissal violated his right not to be depnved of property or liberty without due process of law was without merit.
The coun turther found that since Doe failed to demonstrate he was terminated because of his sexual orientation
rather than because of his unauthorized liaisons with foreign nationals, his equal protection claim need not be
reached. Cite: Doe v Clienex: S85 F.2d 898 (D.C. Cir. 1989).
104
G. Gaver v. Schtesinger (1973). This case consolidated government appeals of three cases in which the U.S.
Oislnci Coun for DC. set aside ihe Department ot Defense's (DOD> revocation ot' industrial security clearances
granted to three detense contractor employees. Each revocation was based on a DOD directive issued pursuant
to Executive Order 10865. which '^ranted the DOD authonty to grant security clearances when doing so would
be clearly consistent with the national interest.
In the first case ( Weniworih v ScMesin%er), Wentworth had admitted he was gay and submitted to an
extensive senes ot' questions regarding intimate details of his pnvate life. An administrative hearing board
approved the withdrawal of his clearance, relying on a provision of the DOD direaive that made any conduct that
made an individual likely to be subject to coercion a relevant cntenon in evaluating the individual's suitability
for a clearance. The district court granted summary judgment to Wentworth. ruling the board relied solely on
his admission and had failed to present any evidence that he was susceptible to coercion or blackmail. It also
held that the scope of the questions violated Wentwonh's federal constitutional nght of privacy.
The U.S. Court of Appeals for the D.C. Circuit affirmed m pan. holding the scope of the questions violated
both the executive order, which it interpreted as prohibiting unnecessarily intnisive questions, and Wentworth s
right of privacy. It remanded his case tor further, less intrusive administrative proceedings. The court declined
to consider the issue of whether or not a blanket policy of excluding gay people could be imposed, but suggested
the relationship between sexual orientation and the potential for blackmail or disruption of the efficiency of the
organization could justify denial of a security clearance in individual cases.
The second and third cases (Gayer v. ScMesm%er and Ulnch v Schlesin%er) involved slightly different
circumstances. Gayer and Ulrich admitted they were gay, but refused to answer detailed questions similar to
those answered by Wenrworth. Both of their clearances were revoked under a provision of the DOD directive
that made t'ailure to cooperate in a security investigation cause for revocation. In both cases, the distnct court
found that since Gayer and Ulrich had admitted they were gay, additional questioning about their sexual
onentation and conduct violated their federal constitutional right of privacy and ordered the suspension of their
clearances set aside.
The appellate court affirmed the decision with respect to Ulrich, holding that although further questioning
relevant to the issue of whether he presented a security nsk was permissible, the scope of the questions presented
to him violated the executive order and his nght of pnvacy. It reversed the district court's reinstatement of
Gayer, tlnding that his retusal to answer a second, modified set of less intrusive questions was unjustified. The
court remanded his case for funher administrative proceedings so that he might be given an opportunity to
respond. Cite:. Gaver v. ScMesmtier. 490 F.2d 740 (D.C. Cir. 1973).
H. .A^ams v. Laird (1969). Roben Adams worked as an electronics technician at a defense contractor. At the
instigation of his employer he applied for an upgrade of his industnai secunty clearance from Secret to Top
Secret. The ensuing security investigation revealed Adams was gay. Adams application for an upgraded secunty
clearance was denied and his existing clearance was suspended. Adams challenged the decision in the U.S.
Distnct Court for D.C. claiming that his federal constitutional nght to due process of law was violated. The
court rejected Adams' claim and granted summary judgment to the government. The U.S. Court of Appeals for
the DC. Circuit affirmed the distna court's order, holding there was a rational basis for linking being gay with
the potential for security problems and thus the denial of the clearance was constitutionally permissible. Cite:
Adams V Laird. 420 F.:d 230 (D.C. Cir. 1969), ceri. denied, 397 U.S. 1039 (1970).
VIII. Prisoner cases.
A. Kelley v. Vaughn (1991). Richard Kelley was a prisoner at the Western Missoun Correctional Center. He
brought this action challenging his dismissal from his job in the bakery at the Center, claiming that he was
removed solely because he was gay. In an opinion reviewing the sufficiency of Kelleys pro se complaint, the
U.S. Distnct Court for the Western Distnct of Missoun interpreted his complaint as alleging violations of Title
VH and his federal constitutional rights of due process and equal protection. The court dismissed the Title VII
and due process challenges, holding that judicial consensus had established Title VII did not protect against
discnmination based on sexual orientation and that, as a pnsoner. Kelley had no constitutionally protected interest
in a particular job upon which to base a due process claim. The court held he had sufficiently alleged a claim
of arbitrary discnmination to warrant fuller consideration of his equal protection claim and allowed his case to
proceed. Cite: Kelley v Vaughn. 760 F. Supp. 161 (WD. Mo. 1991).
8. Johnson v. Knable (1991). Steven Johnson was a pnsoner at the Maryland Correctional Institute (MCI). He
sue MCI and several of its officials in federal court, claiming he had been discnminated against in violation of
§ 1983 because he was denied a pnson job because he was gay. The distnct court initially dismissed the case
as frivolous, but was reversed by the U.S. Circuit Court of Appeals for the Fourth Circuit m an unpublished
opinion holding Johnson had alleged a potentially cognizable claim that his federal constitutional right of equal
protection had been violated. The case was remanded and the distnct court adopted a magistrate's evidentiary
report and recommendation which found MCI had not discnminated against Johnson based on his sexual
onentation. The Fourth Circuit again reversed the district court, holding the distnct court had improperiy failed
to conduct a de novo review of the magistrate's decision after it was objected to by Johnson. Cite: Johnson v
Knable. No. 90-7388. 1991 U.S. App. LEXIS 12125 (4th Cir. May 28. 1991).
C. Bush V. Potter (1989). Ray Bush, a pnsoner in a Tennessee state work camp, sued the job coordinator and
head kitchen steward at his camp, claiming they violated his federal constitutional nghts by finng him I'rom his
job in the camp's kitchen because he was gay. The U.S. Court of Appeals for the Sixth Circuit atTirmed the
distnct court's dismissal of Bush'j claim, holding that prison inmates have no constitutionally protected nght to
a particular pnson job. Bush v. Poller. S75 F 2d 862 (6th Cir. 1989).
IX. U.NANALVZED Cases.
The following cases have been cursorily reviewed, but have not yet been fully analyzed for this study:
Anonymous v ,Wacy, 398 F.2d 317 (5th Cir. 1968). cert, denied, 393 U.S. 1041 (1969).
Aranotfv. Brvan. 369 A.2d 466 (Vt. 1989).
Board o) Educ. v Morales Calderon. 35 Cal. .App. 3d 490 (1973), appeal dismissed and cert, denied. 419 U.S.
807 (1974).
105
Blum V Gulf Oil Corp. 597 F.2d 936 (5th Cir. 1979).
Governing Bd. v Ueicalf, 36 Cal. App. 3d 546 (1974).
Hart V Saiionat Uori^. i land Cu. 189 Cal. App. 3d 1240 (1987).
Joachim v American Tel i Tel. Info. Svs.. 793 F.2d 113 (5th Cir. 1986).
M.A.E V. Doe. 566 A.:d 285 (Pa. Super Ct. 1989)
Lyde v City of .-ikron. 729 F.2d 1461 (6th Cir. 1984).
Madsen v Erwn. 481 N.E.2d 1160 (Mass. 1985).
Manale v Roussel. No. S7-2694. 1988 U.S. DIst. LEXIS 9744 (E.D. La. Aug. 29. 1988).
.Uarks V Schlesinger. 384 F. Supp. 1373 (CD. CaL 1974).
McConnell v. .Anderson. 451 F.2d 193 (8th Cir. 1971). ceri. denied. 405 U.S. 1046 (1972).
.UcKeand v. Laird. 490 F.2d 1262 (9th Cir. 1973).
Uorrison v Board of Educ. 461 P.2d 375 (Cal. 1969).
Mojo- v Board of Educ. 12 Cal. App. 3d 988 (1972).
.\arai;on v Wharton. Ij7 F.2d 1403 (5th Cir. 1984).
\alional Gay Task Force v. Board of Educ.. 729 F.2d 1270 (10th Cir. 1984). affd. 470 U.S. -^04 (1984) (per
cunaml.
Sewman v District of Columbia. 518 A.2d 698 (D.C. 1986).
Norton v .Uacv. 417 F 2d 1161 (D.C. Cir. 1969).
Padula V Webster. S22 F 2d 97 (D. D.C. 1987).
Polly V. Houston Lighting & Power Co.. 825 F. Supp. 135 (S.D. Tex. 1993).
Richards v Mileski. 662 F.2d 65 (DC. Cir. 1981).
Richardson v Hampton. 345 F. Supp. 600 (D. D.C. 1972)
Safranskv v Personnel Bd. 215 N.W.2d 379 (Wis. 1974).
Sarac v Board of Educ. 249 Cal. App. 2d 58 (1967).
Schlegel v United States. 416 F.2d 1372 (Ct. CI. 1969). cert, denied. 397 U.S. 1039 (1970).
Scott V Macy. 349 F.2d 182 (DC. Cir. 1964).
Scorr V .Uacy. 402 F.2d 644 (DC. Cir 1968).
Smith V Liberty Mut. Ins. Co.. 569 F 2d 325 (5th Cir. 1979).
Swift V United States. 649 F. Supp. 596 (D. DC. 1986).
Thibauit v Woodward Governor Co.. No. 058982, 1992 Conn. Super. LEXIS 1742 (Conn. Super. Ct. 1992)
Toddv Navarro. 698 F. Supp. 871 (S.D. Fla. 1988).
Unified Sch Dist. v Labor and Ind Rev. Commn.. 476 N.W.2d 707 (Wis. Ct. App. 1991).
i'aldes V Lumbermen! .Vfut. Casualty. Co.. 507 F. Supp. 10 (S.D. Fla. 1980).
Williams V Hampton. 7 Empl. Prac. Dec. P9226 (N.D. 111. 1974).
Voder v Voder. 204 Ct. CI. 931 (1974).
Zaks V .American Broadcast Co. Inc. 626 F. Supp. 695 (CD. Cal. 1985).
Zaiewski v. .'i^.ARS. Enter Lid. 561 F. Supp. 601 (D. Del. 1982).
This summary was prepared by Stephen J. Curran. Georgetown University Law Center.
106
APPENDIX II
local & State
^^tion to Provide Protections Asainst
Discrimination B^^t'f^ on Sexual Orientation
Comprehensive
State Laws
California
Berkeley
Florida
California
Cathedral City
Alachua County
Connecticut
Cupertino
Hillsborough County
Hawaii
Davis
Key West
Massachusetts
Hay ward
Miami Beach
Minnesota
Huntington Beach
Palm Beach County
New Jersey
Laguna Beach
Tampa
Vermont
Long Beach
West Palm Beach
Wisconsin
Los Angeles
Mountain View
Georgia
Oakland
Atlanta
State Executive
Riverside
Fulton County
Orders (public
Sacramento
employment)
San Diego
Hawaii
San Francisco
Honolulu
Colorado
San Jose
Louisiana
San Mateo County
Illinois
Maryland
Santa Barbara
Champaign
Michigan
Santa Cnjz
Chicago
New Mexico
Santa Monica
Cook County
New York
West Hollywood
Evanston
Ohio
Urbana
Oregon
Colorado
Pennsylvania
Aspen
Indiana
Rhode Island
Boulder
Bloomington
Washington
Boulder County
Crested Butte
Lafayette
Cities/Counties
Denver
Iowa
with Ordinances
Morgan County
Ames
or Public
Telluride
Iowa City
Employment
Connecticut
LotJisianna
Alaska
Hartford
New Oheans
Anchorage
New Haven
Stamford
Maine
Arizona
Lewiston
Phoenix
nistrirt of Colombia
Portland
Tuscon
107
MarvianU
North Carolina
Virginia
Baltimore
Carrborro
Alexandria County
Gaithersberg
Chapel Hill
Howard County
Durham
Washington
Montgomery County
Orange County
Clallam County
Prince Georges County
Raleigh
Clark County
Rockville City
King County
Takoma
Qhig
Olympia
Cincinnati
Pullman
Massacnusens
Cleveland
Seattle
Amnerst
Columbus
Vancouver
Boston
Cuyahoga County
Cambridge
Dayton
W?st Virginia
Maiden
Yellow Spnngs
Morgantown
Somerville
Worcester
QreqOh
Wisconsin
Ashland
Dane County
Michigan
Corvallis
Madison
Ann Arbor
Eugene
Milwaukee
Detroit
Portland
East Lansing
Flint
Pennsylvania
Harnsourg
New Mexico
Lancaster
Albuquerque
North Hampton
Philadelphia
New YorK
Pittsburgh
Albany
State College
Alfred
York
Bnghton
Buffalo
South Carolina
East Hampton
Columbia
Ithica
New York City
Soyth Dakota
Rochester
Minnehaha County
Suffolk County
Syracuse
Texas
Tompkins County
Austin
Troy
Watertown
Utah
Salt Lake County
Vermont
Burlington
108
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112
APPENDIX III
ALABAMA
To cam graduate-school tuiiion. John Howard gave lours of Gulf States Paper
Company's large private an collection. Another employee told Howard's supervisor
about Howard's sexual orientation. The supervisor called Howard in. acknowledged
ihai his work was "perfect." and asked him whether he was gay and whether he
belonged to any gay organizations. After learning that Howard was president of the
University of Alabama Gay and Lesbian Alliance, the supervisor fired him.
ARIZONA
Jeffrey Blain worked in sales lor Golden Sate Container, a Phoenix area
manufacturer. During his I'irsi six months, Blain received a 37.5 percent raise. In
recognition of his early success. Golden Slate transferred Blain lo a new division of
the company to assist in sales. But ihe manager of the new division expressed
hostility toward Blain and encouraged speculation about Blain's sexual orientation.
Blain complained to Golden State's vice-president. Soon afterwards, ihe vice-
president fired Blain, explaining only that Blain was "a fish out of water."
CALIFORNIA
William Ballou began working as a waiter at a Marie Callendars restaurant in
Fremont. Within six-months, he had received both a promotion to assistant manager
and a glowing letter from the franchise owners. One day Ballou noticed a violation of
company policy and reported it to ihe manager. But ihe manager responded angnly,
shouting anti-gay slurs at Ballou. Ballou informed the restaurant owners of the
cojifrontation, but instead of enforcing ihe company policy they fired Ballou, citing
"personality conflicts." The owners refused lo elaborate.
Xavier David Caylon waited tables at a San Diego franchise of a national restaurant
chain. After about a year, he applied lo enter management. The district manager —
who admitted pnvately that she had a "problem" with gay men -- rejected Caylon 's
application, and Caylon left for another state. A year later, Caylon returned lo San
Diego, 10 another franchise in the same restaurant chain. At ihis location. Caylon
suffered repealed harassment. Cooks and busboys would heat his plates, lose his
checks and use derogatory nicknames. Ahcr more than iwo years oi harassment, and
with his path to promotion blocked by prejudice, Caylon quit.
FLORIDA
Carolyn O'Neill is a heterosexual, single mother of three young children. She relied
on her job at a Tampa bar lo support herself and her children. In late 1993. ihe bar's
owners decided to target a gay clientele and lo hire new waitstaff consisting of only
gay men. They fired all iheir heterosexual employees, including O'Neill. .After ihese
firings gained publicity, many of Tampa's gay and lesbian citizens mounted a boycott
of the bar lo protest the discrimination O'Neill and others had suffered. The bar, with
its business undermined, shut down shortly thereafter. As a boycott leader observed,
"Sexual orientation has no bearing on your capacity to mix drinks. Discrimination is
wrong whether ii's directed against gays and lesbians or straights."
GEORGIA
Terry Stowe began work in 1982 as a part-lime sales representative for a national
clothing retailer. By 1991. Siowc had worked his way up to ihe position of manager,
having received several commendations, raises and large bonuses along the way. Yet
speculations about his sexual orientation made him the target of pressure wiihin the
clothing chain's administration. The regional vice-president would call gay
employees "flits" and often press Stowe to call women employees for dates.
Eventually the regional vice-president realized Stowe was gay and began excluding
him from regional manager meetings and dinners. In December 1991, ihe regional
VP told Stowe ihat he was not going any further with ihe company and that it would
be best if he resigned. The vice-president relused lo give Stowe any further
explanation. Stowe s job ended in January 1992.
In 1991, Meredith Daley -- who is heterosexual - and southeast regional
recruiting manager for ihe same national clothing retailer, received instructions
not 10 forward for management positions, ihc names of any employees who even
appeared lo be lesbian or gay.
113
Dean Hall of Augusta look j job as u salesperson ai a local car dealership. Hall's
manager regularly saw Hall dropped off and picked up from work by his male
panncr. Hall had bec*i ai ihe job for only ihrce weeks and had jusi sold his first big
sale when he was fired. Asked why, the general manager lold Hall that "it's not any
of your damn business and 1 don't have lo icll you anything."
KANSAS
Vernon Janiz is heterosexual, married and ihe father of iwo children. In 1987 and
1988. Jantz often substituted ihroughout ihe Wichita school district, including in the
Wichita North High School social studies department. When Wichita Morth
announced an opening for a social studies teacher, Jantz received sterling
recommendations from fellow teachers, including ihe director of ihe social studies
dcpanment. But the principal's secretary remarked thai Jantz reminded her of her
ex-husband, who she thought was gay. As a result, the principal hired someone else.
When the department director asked ihc principal why he had not hired Jantz. the
principal explained ihat he had rejected Jantz because of his "homosexual
tendencies. " Jantz sued ihe school in federal coun. But because federal law does not
protect against discrimination based on sexual orientation. Jantz lost his case.
.MARYLAND
For many years. Mike Engler. a stockbroker, participated actively in the civic life of
Cumberland, serving on the board of the local Red Cross, the local college's
development committee, and ihe local country club's planning committee. In 1985. a
local financial services company hired Engler away from another firm to start a
brokerage division. Under Englcr's leadership, the new division became highly
profitable. But after Engler bought a home in Cumberland and moved in with his
panner. ihe company fired him. The president and the board chair explained that
Engler was not "compatible" with the company or ihe community, and that he could
not "participate in things expected" of him. .After ihc company fired Engler. it
refused lo give him a reference and made it extremely difficult for him to work as a
stockbroker. He was forced lo sell his house and spend much of his retirement
savings: eventually he took a job as a bartender. After considerable struggle. Engler
once again works as a stockbroker, marketing to the gays community.
.MASSACHUSETTS
Karen Harbeck began teaching as an assistant professor at the University of
Massachusetts at Lowell in 1986. When she was hired, the dean acknowledged her
credentials and accomplishmcnis. and promised lo promote her within one year. But
a student began threatening Harbeck's life, carrying a gun onto the campus and
saying ihe God had "ordained" him to "kill all homosexuals." Soon afterwards, the
university notified Harbeck that the school no longer needed her courses or her
services and ihai it was terminating her contract. But the university never canceled
Harbeck's courses. Instead, the school hired another professor, one with no
background m human relations or minoniy issues, to teach the same courses.
MICHIGAN
When Steve Vanston interviewed for a job with Jon Anthony Rorist in Lansing.
Michigan. .Anthony asked if Vanston s roommate, who was waiting to pick him up,
was his "girlfriend." Vanston said yes and was hired as the store's sales manager.
Soon after Vanston started work, ihc general manger lold him "Thank God" he had a
girlfriend, because '"we all thought you were a fag."
Vanston set sales records and received positive reviews and raises ihe first
several months of his work at the shop. The owner asked him lo do bill collection
after hours, for extra money One day a friend of Vanston 's died in a car accident,
and many of Vanston's friends came lo ihe store lo buy llowers for ihe funeral. A co-
worker was overheard saying, 'We've noticed a lot of fags in here lately." Shortly
thereafter, Vanston's supervisor removed him from sales and reduced his hours to
pan-time, causing ihe loss of his health insurance. When Vanston complained, his
supervisor responded. "We can do whatever we want." and accused him of taking off
too many days. When she then lold Vanston he could not take long-promised time off
to pick his mother up at the airport. Vanston quit.
MISSISSIPPI
Jessie Shaw worked as a social worker at Hudspeth Retardation Center, a state-funded
center tor retarded children near Jackson. Mississippi. Shaw had a good background
114
for the job. havinga degree jn psychology and experience caring tor sick, abused
and neglected children ai ihc Children's Bureau in Los Angeles. Bui Shaw's partner
missed her family, aiul ihcy moved lo Mississippi, where, as Shaw puis ii. "your
family is everything."
Nearly every day at work her co-workers shared pictures of iheir families.
Shaw did not hide her sexual orientation, and one day a co-worker asked to sec a
picture of her partner. So she brought in photos of herself, her partner and their
two dogs. Shaw showed the photos only lo co-workers who asked to see them. But
when Shaw was away from her desk, a co-worker looked in the album. Deciding she
did not like what -ihe saw, she complained to management about the photos. Ten days
later, a supervisor called Shaw into his office. Even though he praised her work,
saying she was "one of the best employees ihey had" — he fired her. not because she
was gay. "but because you brought in pictures ol' your lover."
Shaw now works in a temporary job as a long-distance operator. She misses
social work, the work she feels she was meant to do.
NEW HAMPSHIRE
After a year working as a warehouse overseer in the Concord area. Ron Lambcn had
established an unequalled performance record. He had met and surpassed shipping
quotas, reduced costs, and received regular praise, additional responsibilities, and
unusually large raises and bonuses. Lambert had also established friendships with a
few other managers at the warehouse and had met their spouses and families. Partly
out of a sense of reciprocity, Lambert- began to "come oui" pnvately to these co-
workers. Suddenly, without warning, the director of operations summoned Lambert
into his office, announced that Lambert was "not the man for the job," gave him a
final paycheck, and escorted him off the premises. The company gave Lamben no
other explanation for his firing: a fellow manager corroborated Lambert's belief that
the company fired him for being gay.
m
OHIO
Joyce Pcrciballi of Canton worked at DcBold. Inc.. a Fortune 500 company, for over
thirteen years. She started as a clerk and advanced lo the position of manager.
During that lime, she received five quality awards from the company and 27
complimentary letters from customers, including one that said "there should be more
Joyce Pcrciballis." While at DeBold, Pcrciballi had "come out" to a few co-workers.
But during a meeting that Pcrciballi did not attend, her supervisor announced
Perciballi's sexual orientation lo the entire depanmcnt. Early in 1994. three of
Pcrciballi 's superiors summoned her into an office where ihey interrogated her for
an hour about her sexual relationships. Two days later came another interrogation,
this time for ihree hours, followed by two lengthy telephone calls to her home. The
next week she was fired. A lawyer lold her "it's a sad story, but it's not against the
law " Pcrciballi obtained a settlement from the company based on invasion of
privacy, and has been collecting unemployment compensation.
VIRGINIA
Jennifer Lynch worked in .Arlington as a live-in aid at a residential facility for
mentally retarded adults. As the live-in aide. Lynch supervised the residents,
distributed prescription, and ran o-ducational programs. From the beginning. Lynch
was open about her sexual orientation, which caused no trouble. Indeed, both
performance reviews she received rated her work as excellent. Then the facility
hired a new supervisor. The new supervisor announced a policy for visits by friends
of live-in aides, requiring that, except in an emergency, live-in aides get his
permission in advance to have guests.
Soon thereafter Lynch 's partner, Heidi, came out to her parents and was
thrown out of the house. She had no money and nowhere to go. When Heidi went to
retrieve some of her personal possessions, she was physically assaulted, leaving her
bruised and bleeding. She called Lynch for help, and Lynch immediately notified
her supervisor that she had an emergency and that her friend would be visaing for
the night. Before they reached the facility, Heidi's mother called and spoke to
Lynch's supervisor. Later that evening, the company vice-president called to insist
that Heidi could not stay there. The next day. Lynch was suspended. The following
week. Lynch was fired. Her supervisor gave as his principal reason "evidence of
insubordination. " which he refused to explain further.
115
WASHINGTON
Bonita Corliss of Scaule was rccruiied by a siaic agency in 1987 for a position in ihe
library at the state women's prison. Soon afterward, anti-gay harassment staned.
One day, arriving for work, she discovered ihai someone had laken all the gay and
lesbian titles off the shelves and stacked ihem on her desk. Later, the deputy
supennicndcnt called her into the superintendent's office and demanded to know
her sexual orientation. Corliss also faced anti-gay harassment from a gang of
inmates who openly identified with the Ku Klux Klan. Although she sought help
from her supervisors, they left her lo fend for herself. Finally, prison officials gave
Corliss a letter stating that she had become "a threat lo the security of the
institution. " Eleven weeks after Corliss began her job. a prison administrator met
her. ordered her to surrender her identification, escorted her lo pack her personal
possessions, and rushed her off the premises.
Over years of reporting on education issues at the Tacoma .Morning News Tribune.
Sandy Nelson received several journalistic awards, positive reviews, and pay raises.
In 1986, however, anoihcr company purchased the newspaper and abrogated union
contracts, including a clause that protected employees from retribution based on off-
duty activities.
In 1989 Tacoma enacted an anti-discrimination ordinance. Immediately a local
group launched a campaign to overturn ihe ordinance and re-legalize discrimination
on the basis oi sexual-orientation. .As u citizen. .Nelson worked during her off-hours
to retain ihe ordinance. After company managers learned of .Nelson's involvement
in the campaign, ihcy reprimanded licr and transferred her to ihe night copy desk.
However, the company neither reprimanded nor interfered with other reporters
who were politically active in other causes off ihc job. Indeed, even when .Nelson
herself worked on other causes -- opposing the Gulf War and supporting abortion
rights - the newspaper did not intervene.
On her own time, in 1994. Nelson icsiified in favor of a state anti-
discrimination bill. Once again, ihe newspaper reprimanded her, this time
threatening her with further unspecified "administrative action."
Rivendel
l1drliefjnQCo[nponii,tnc.
P.O- 901 I 2«l
PLAIfiri ILO. HJ 0708 I •
90l-7Sl-13't I FAX. 90a-7a9-l]73
DATE: July 28, 1994
TO: Scott Foster
FROM: Michael Gravois'
RE;
Simmons Market Ri
Bureau survey of readers of gay publications
NUMBER OF PAGES INCLUDING COVER SHEET: 4
As per your request, please find infonnaaon compiled by the Simmons Market Research
Bureau on the readers of the National Gay Newspaper Guild. The Guild is a network of gay
publicaaons from major U.S. markets which include New York City, Los Aageles, Chicago,
Houston, Philadelphia, Boston, San Francisco, Washington DC, Dallas and Miami. A survey
was conducted m 1988 and 1992. For the record, the participants in the 1988 survey were
publicauons from New Yorfc. Chicago, Houston, Philadelohia. Boston, San Francisco,
Washington DC and Dallas. Participants m the 1992 survey included everv member except the
publicauon from Chicago. The staustics that you'd quoted to me on the phone (S36.800 vs.
312,287) were taken from the 1988 survey (see pages 3 & 4). Page two contains information
from the more recent 1992 Simmons survey.
The information gathered by the Simmons orgamzation was never mtendcd (and never
claimed) to represent the gay and lesbian commumtv at large, but only the readers of the
'"<iividual member publicaaons. Just as a survey of the readers of Newsweek , Forbes, or
RedbooKan not representaave of all Amcncans, the Simmons survey does not represent all
members of the gay and lesbian community. The demograpliics were collected solely as
116
a tool in order to pursuade poienttal advenisen to aavernst in thtir
publications.
Who is tiie typical Guild reader? He is bajically a white male, with the median age of 36,
employed (92. 1% arc employed), with a college degree (59.6% have graduated a 4 year college
or more), who lives m a city (71.8% live in urban areas), with an HHl of 563,700, and an
average individual income of S4.1.300. You will see that women and people of color are out of
the picture. It's not by any oversight on the part of Simmoni, it just doesn't reflect the
readership of these publicanons. If the opposition wants to use this inforroation against the gay
community, then they have to realize that they are not including the whole picture, but only a
segment of the total market
As you are probably aware, the amount of one's income does not prohibit that individual
from experiencing discnrmnauon. The amount of one s salary protects them from nothing.
Whether one makes $20,000, 341,000 or $100,000, that individal in most places in the United
States can still be fired for being gay, denied job advtmces for bcmg gay or be thrown out of his
or her apartment for bemg gay. C3St in point, I could be an officer m the United Stales Aimed
fotres making 541,300 and be discharged for being gay. My salary base proves nothing.
Disciunination is discriminanon regardless of your income.
I hope that the information that I have provided and my cxplanadon of its intent is helpful
to you. If I can be of additional service, please do not hesitate to call me at (908) 754-4348.
9P«Ci*Li«rt.
msi
San/,
ey
Profile of the
National Gav^ewspaper Guild*
The National Qay Newspaper Guild (NGNG) Is a network of gay publications from across the
country which includes: Bay Area ReporteriSan Francisco), Bay Windows (Boston), Dallas
Voice. FmnUsrs (lA), The New Voice (Houston), New YorH Native. Philadelphia GayNevts, The
Washington Blaaa (DC). TTia Weakly News (Miami), and Windy City Times (Chicago).
Who Is the National Gay Newspaper Reader?
Notlonai
coy
Newipoper
Guild
BiyAntRannN
8ȴ Windows
Dallas Vdct
FftiraiOT
The Houston Valet
Nntyorti Native
Pt)ilaiMpliii(3arNem
WuNngtaiBlsdi
Th Weedy News
Windy Cl^yfimu
Gender:
Age:
Education:
Employment:
Income:
89.9% Male.
10.1% Female
18-34
35-44
45-54
46.1%
32.6%
14.6%
59.6% graduated 4 year college or more
92.1% are employed
50.6% are professional/managerial
1 2.7% are employed in top management
$41 ,300 - Average individual Income
53.9% have individual incomes over $30M
21 .7% have individual incomes over $50M
$63,700 - Average housenold income
79.2% have household incomes over $30M
41 .8% have household incomes over S60M
National Gay Newspaper Guild readership statistics:
Number of last 6 issues read or looked at 5.1 (mean)
Total amount of time spent with last issue 58.2 minutes
Total reaaers per cooy 2.S
Comoined NGNG circulations 212,000
Combined NGNG readerships 551 ,200
117
Impact advertisements have on NGNG readers:
Likely to use a product or service advertised 91 .8%
Likely to purchase products or services of
national businesses advertised 88.3%
LJklihood of mentioning to others products/
services advertised in publication 49.8%
* TTw Profli* ol tn« NONQ rMOtnnlD It r» (Ktuvvt crooanr of t\* Nauonai Gay Ntmotetc QuU. No uat or
quoauon of ttUt tludy from 11* ccnwnt may bo maM by anyono witnout ft* ponniaaion ot a Ciiid mambaf or an
auttortzad r«or»a»nnnva.
Rivmdell Markaung Campany I P.O. Box 12fl8 I Plainfield. NJ 07M1-1ZB8 I 9(»-754-434« I Fax: 308-769-1375
q^Js
uru
•eju
The Simwons survey verifies that the gqy
consumer has a very high income level a
very high education leVeL usually no
dependents, and therefore a Very high
amount of discretionary income. The
average indri/idml income for the readers
of the eight top gay ne^Jspapers is
S36£00 (aver three times the national
averagei and the average household
income is S55.430 (a^er 1.7 times the
national aVeragel Almost 60% of the
readers are college graduates (over 3S
times the national averagel vJith 35%
having done postgraduate wtric Our
readas are 97% employed -vfith 49%
holding professional or managerial
positions (over three times the national
average), They are 86% male and thet
average age is 36. Wtt/j 74% between 25
and 44 years qfage.
118
V- IJ.««0
^OC S>onje^
INDIVIDUAL INCOME
■SIMMONS SURVFV - FlfiHT TOP CiAY P APSflS
The survey shows that the average
individual income of our readers is
536,800 compared co (he national
average mdividual income figure for
1988 provided by the US Ceaius
Bureau of 512^87. Censos figure ii
from a report entitled "Money, Income
and Poverty Status in US - 1987."
eitv
When our average individual income is
expressed as a percentage of the national
Coisus Bureau figure, our readers are
shown to earn at a rate of 299 J% of the
Qahonai average individual income.
AVPRAQE INniVtnUAL INCOME:
TOTAL -INq^?^
AVgRAGg INDIVIDUAL INCOME:
MALg
Cltv
The survey shows that the average
individual income of our adult male
reader is 538,200 compared to the
national average individual income
figure for 1988 provided by the US
Census Bureau of 512^87, The
Census Bureau report gives no break-
down by sex, so their total population
figure IS used here for calculauons.
CHv
When our average individual income for
adult males is expressed as a percentage of
the national Census Bureau figure, our
adult male readers are shown to earn at a
rate of 3 10.9% of the national average
individual income.
AVERAGS INniVmUAL INCOME:
MALE -INDEX
:6 ^ ~ '
■'l s ^
«»
■gSi ^
-9 ,, _ J *
isiw
jy
' 2 i
a
I I J 4
^ I I I
CIIV
S I
119
H'LLano knowlton
? Hill ana Kncwilon. Inc
imernalionai Puoiic floiaiions Counsel
•»20 Lexington Avsnoe
News Release ^^^^^^^ecT ^°"< '^"'^
FOR RELEASE: CONTACFS:
June 9, 1994 Amy Menken
Hill and Knowlton
(212) 697.5600
Watts Wacker/
Rex Briggs
Yankelovich Partners Inc.
(203) 227-2700
BREAKTHROUGH YANKELQVTCH STUDY PRQVFDES NEW
INSIGHTS ON MARKETING TO GAY AND LESBUN POPULATION
WESTPORT, CONN., June 9, 1994 - Yankelovich Fanners Inc., the leading market
research firm, today released important findings on the gay and lesbian population that
should significantly affect how marketers and advertisers address this group in the future.
The data is an offshoot of the Yankelovich Monitor®, the firm's ongoing research effort
that has collected and interpreted a broad range of consumer data annually since 1971.
Yankelovich has compiled this information to produce the first Yankelovich .Monitor:
Gay/Lesbian Report Yankelovich has also provided the data to author/business
consultant Grant Lukenbiil, whose upcoming book. Untold .Willions: Tfie Cay and Lesbian
Consumer Revohuion in America, integrates the research. The book will be published by
HarperCollins.
The research profiles the attitudes, values, perceptions and demographics of gay
and lesbian Americans. Watts Wacker, resident futurist and managing partner at
Yankelovich, comments, "This research represents one of the first nationally
representative portraits of self-identified gay and lesbian Americans. We believe it has
important ramifications for businesses that currently market or plan to market to this
segment of the population."
A core finding is that gay and lesbian Americans are increasingly looking for
products marketed by companies that address and serve their needs. "The study
validates that there is a real need and a tremendous opportunity for companies to
market directly to the gay and lesbian population, as some have begun to do," says Rex
Briggs, project director for the Yankelovich Monitor: Gay/Lesbian Report. "The key to
building strong relationships with gay and lesbian Americans is to learn about them as
120
consumers, understand and fulfill their marketplace needs and effecuvely conununicate
to them."
Additional findings include:
Demoeraphlcs
■ Approximately 6 percent of the U.S. population identify themselves as gay/lesbian.
The distribution of this group mirrors that of the heterosexual population with
regard to gender, ethnicity and age.
■ Gay/lesbian Americans are twice as likely as heterosexuals to have
attended graduate school (14 percent of the gay/lesbian population
compared to 7 percent of heterosexuals).
■ Personal income of gay/lesbian Americans is roughly equivalent to that of
heterorexuals.
■ Eighteen percent of gay/lesbian Americans are self-employed, compared with 11
percent of heterosexuals.
■ Political affiliations of the gay/lesbian population mirror those of the
heterosexual population. However, a higher proportion of the gay/lesbian
population (28 percent compared with 17 percent of heterosexuals) holds a
liberal point of view.
■ The gay/lesbian population has fewer Protestants compared with the
heterosexual population (46 percent compared with 56 percent). Other
religious affiliations are represented in similar proportion in the gay/lesbian
population as in the heterosexual population.
■ Forty-rwo percent of gay/lesbian Americans indicate that they consider
themselves married, compared with S-t percent of heterosexuals.
■ Lesbians are nearly as likely as heterosexual women to have children. Fifty
percent of the gay/lesbian population are parents (compared with 66
percent of heterosexuals); 25 percent have children under 18 in the
household (compared with 32 percent of heterosexuals).
■ The gay/lesbian population is more highly concentrated in the 25 most
populated metropolitan counties (56 percent of gay/lesbian .Ajnericans live
in the top 25 counties compared with 33 percent of heterosexuals); they
are underrepresented in the South (25 percent compared with 35 percent
121
of heterosexuals) and overrepresented in the North Central census region
(32 percent compared with 12 percent of heterosexuals).
Social Issues
■ The heterosexual population's unaccepting attitudes toward the gay/lesbian
population have decreased significantly over the last 10 years.
■ Gay/lesbian Americans feel much higher levels of stress regarding financial
security, employment, personal life and parents than do heterosexuals.
The Yankelovich gay/lesbian sample was defined through a confidentially
disclosed, self-idendfied item within the 1993 Monitor questionnaire. Respondents were
asked to review a list of 53 self-descriptors and choose those terms that best described or
represented them. One of the self -describing terms was "gay/homose.xual/lesbian." Their
responses to the full survey were compiled as the Yankelovich Monitor: Gay/Lesbian
Report.
Lukeabill notes, "The Yankelovich findings are not only the first of their kind, but
they confirm that numerous presumptions and stereotypes about gay and lesbian
Americans are incorrect, particularly those regarding individual values, income,
education and political affiliations." Lukenbill's book %vilJ explore the ramifications of
the data in greater detail.
Yankelovich Partners, headquartered in Westport, Conn., maintains a network of
offices and associates that provide research capabilities in more than 80 countries.
122
Appendix
Demographic Profile
1993 Yankalovlch MONITOR
Personal income
Under S25K
$25-549,999
550-599,999
S100K+
Household income:
Under S25K
S25-$49,999
350-399,999
$100K+
Mean personal income (000)
Mean household income (000)
Gay/Lesbian
Heterosexual
%
%
85
78
'2
•9
2
3
1
•
44
38
39
39
14
20
3
3
S16.9
$17.6
S35.8
S36.7
1993 Yankelovich MONITOR
Gay
Heterosexual
Heterosexual
Mala
Male
Lest}lan
Female
(63)
(1145)
(80)
(1215)
%
%
%
%
Personal income:
Under S25K
81
65
87
88
525-549,999
■m
29
11
11
S50-$99,999
3
5
1
1
S100K+
1
*
•
Household income:
Under $25K
37
32
47
43
325-549,999
49
42
33
37
550-599 999
;-,^9^J
23
18
17
5100K*
5
3
2
3
Mem personal income (000)
S21.S
S22.5
S13.3
S13.2
Mean household income
(000)
S37.4
S39.3
$34.3
S34.4
Mean household size
3.03
3.05
2.78
2.97
A
123
STATEMENT OF
CHAI R. FELDBLUM
Mr. Ciuirmon jnd memoers or the Comminee. my name ;s Chai Fsidbium. i im m Aisociate
Proressor or Lau ar Georgetown L'niversit\ Izw irenter. .vnere I direct j Fetierii Li-:siation
Clinic jnu -.e^cn Federal Legislation. Dibaoiiitv Law. .ina Se.xual Orientation inu ;r,e Law
! am pieasea :o cestiry .nere :oaay on benair' ot the Leaaersnip Conrerence on Civ li fluents, -.ne
.nation i oldest, largest, ana most broadlv-basec: coaiuion. For :orr.--tbur -.ears. :ne LeaaershiD
Conterencs .-.as oeen :ne ieuisiative arm or' :na j;vii rights movement. \s oarr or mv worK
vim :ne L;acersniD Conrerence. ana as a consultant "o the Human Rignts C.mcaigr. .-■inu. ;
.-.ave '.voricea jn the :ssue or emoiovment aiscrt.mination on the ^asis or se.xuai or.e.-itaf.on. ana
ioeciikailv. .n ;ne F.mDioyment N"on-Discr;rr.:nation \c: or ['^'^d
VIv testimonv .ove.'s tour areast
The ac:< or e.xisting protection tor .-ay men. .esoians. bise.xuais. ana :-.e:ero<e.xuais
■••no e.\cer:ence aiscr.mination m em.piovment t;asea on tneir se.xual orientationt
. he tieea to outlaw employment a.scrimination basea on se.xual orientationt
- ' Tai exoerie.nces .n iix at tne i:qr.i states that -.ave passea anti-aiscr.mmation
protection n emoiovment oasea on ^exual orientationt and
.A aescriDtion ot what 5. IIZ-S recuires. ana aoes not reauire. ;n the area of
emoiovment .-lon-aiscnmination.
I. LACK OF EXISTI.NG PROTECTION
A maioruy or the .\merxan people believe :ay men ana lesoians currentlv eniov arotection
124
jgainst jroitrary Jiscnmination ;n the workplace. This misoerciption 5nould not surprise us.
-.merican peopie ha\e 5 ^uc sense that essential American ■. aiues >n' raimess ina eauaur
:nould prevail ;n our ioc:e:y and that, .naeea the :ederai Constitution or "some rederal .au
::rotects Americans rrom jniair and arbirrar.- aiscnmination m tne -vorKpiace.
L'ni'onunateiy. this is not the -;a5e. As civil ngnts attomevs across this country know, the
tederai Constitution pronious aiscnmination only wnen practicea by a .zovemjnental bodv or
^y an intity si!jniiii;an[;> .ntertwinea .vun a governmental :oav • Thus, i'.'en -.r ^ay Teooie
\ere succsssrui n pining protection througn tne provisions or the rsaerai Constitution, iiic.i
3rotec::on <.\ould still not provide legal recourse to the maioruy or people -.vho worK tor prnate
i:nDio>ers. Thus. ja\ ?eopie neea unat other .-ninonties ana Aomen iiavet protection uncir
the teuerai Constitution ana protection unaer a t'eaerai itatu,te.
Ir.chtuucks '-viio e.xpertence discrimination :n private employment because of tneir race.
.-eiigion. national origin, -tender, age. or disaoiiiiy are covered unaer '.anous rederal anti-
discrimination laws." Tlie tirst o: such laws. Title VII ot' the Civil Riahts Act or' \%-i.
pronibits emoiovment discrimination on the basis or - among other -haracteristics -- se.x. !n
a re'.v cases, jav ceooie nave irtempted to receive trroiection under Title VII bv artiuint: that
aiscnmination on tne oasis or sexual orientation should be inctuuea anaer tne ruoric -n se.\
discrimination.
- Accorainsi to a 1994 .Meilman. Lazarus Jc Lake poll. 'O'"o oi the .American puoiic
are unaware that r'ederai civil rights laws do not pronibit tiring a person solely on the basis oi
his or her se.xuai orientation.
- To bnng a constitutional challenge against an employment decision made by a non-
governmental emplover. an individual must snow; !) that the state compelled the employer to
act as It did. or. 1) that the emolover provided a public function that the state was obligatea
to orovide. ort j) that the relationsnip Detween the state ana the employer is so close that it is
fair to treat the two as one entity. .See Burton ■■■ '■Vilminpon Parking Auih.. 365 L.S. .1;
■1961i; .Icnaeii-JuKcr ■.■ xonn. -5" U.S. 330 il98Z1.
• .Appendi.K '.. pp. l-*^. ;nciuaes a summar-' o: cases which have .-aised constitutional
challenges and the reasoning used to reject or accept the constitutional claim. This summary
e.xcluaes cases cnailenging the military ban.
Title Vii 01 the Ci'. ti .Rights .Ac: ot 196^ prohibits employment discrimination on
the oasis oi race, color, .-etigion. sex. or national origin. The .Age Discrimination ;n
Emnlovment Ac: of 1967 pronibits employment aiscnmination on the basis ot age. The
Amencans -vuh Disabilities .Ac: oi 1990 prohibits employment discnmination on the basis ot
disabilitv Other federal laws also prohibit employment aiscnmination on the pan ot entities
that receive feaeral tunds. Title VI ot the Civil Rjgnts .\ci of :'-"54 pronibits such
Jiscnm.ination .n .imitea circumstances on the basis oi race, color, ana religion: :ection :04
of the i^enaoiiitation Ac: oi \9'~ prohibits such aiscnmination on tne basis of aisabilitv; and
tne Aiis Discnmination .Ac: oi '.975 prohibits sucn discnmination on the basis of age; ana T.tle
IV 01 the Zaucation Amendments of 19": pronibits >e.x discnmination ;n education.
125
The ludiciai response to sucn ^.-.allenges has aot been positive, "or examoie. :he coun that
:uiea against Ernest DiUSn. a no rrougnt sucn a ie.\-_. ,r;j;r.-tion .iicrtr.ii.utiun ,:airn anucr
Title Vll. aaa -.his ro iav 'IDiiion i coworkers -ctionsi were ail airecteu at ae:neanmu mm
joieiv because :hey aisaoprovec: Jt his allecea ;:omoscxuaiity. These actions, aitnougn ::u<:i.
are not maae '.i legal bv Title \''! ""
T'lus. vvitn :e>.v exceptions, aa'. rreople who exr;er:er.ce discrimination m emoioyment na"-e "o
constitutional protection -na -j :eaeral ^tatutor- rroteciion. ^ome cas pcooic ■uto ia\e
^xne'ienced egregious t'orms ot aiscrimmation have pursued tort remeaies. ana some have
^ursuea impliea-contract remeaies. As a aenerai .-natrer. such claims liave not been
iuccessrui.'
II. THE NEED TO OLTL.WV E.MPLOYMENT DISCRIMIN.ATION ON THE BASIS
OF .SEXU.-U- ORIENT.ATION
There :s a long traaition m this country, imboaied m :ne ■;mpioyment-at-wiir' Joctnne. .vhich
allows private err.pioyers to tire. !-.ire. ana maKe nher employment Jectsions as tnev wisn.
'■V'hiie the :aoor rr.o^ement ;n this countr-- has maae critical stnaes in ne-aotiating contractual
protections tor ;ts members, most prnate employers prerogatives ore constncted only in
.tmitea circumstances: :i they \oiuntariiy c.-.oose to bina tr.emsei\es bv contract; ,n some states.
,t' their actions ore t'ound by a coun to ce contrary to ^uoiic poucyt or if the state or teaerai
aovemment chooses to intervene trj'ouah rassaae ot anti-aiscnmination iesislation.
^ DUlon ■ Frank. Mo. 90-2290. 1992 L'.S. .Add. LE.XIS '66 (6th Cir Jan I< :09-)
eases m .vnicn a Title VII ciaim '.vas unsuccesstlillv raised to cnallense sexual orientation
employment aiscrimination are summarized in .Appendix !. pp. 10-13.
.. ' .Appendix :. pp. 17- IS. summarizes tive cases brought under contract or ton theones.
n.vo ot which were successful.
In some states, couns have created an exception to the •empiovment-at-wiH" doctnne
oy rerusme to uphold discharges that are contrar,- to the state s puolic poiicv For example
an emoloyee who is discharged in retaliation for 'wnistle-blowmg. • in a state that has a ooiicv
encouragmg whistle-blowing, mav successtbUy argue the discnarge was lilezai because it
contravened the state's public poiicv
The public policy exception, however, reauires a pre-existing expression of the states
policy, usually emooaied m a state statute or regulation. This exception i-.as never reen
JuccessruUy mvoKec in the area ot sexual onentation. orobably oecause 'f there were a state
.aw prohibiting sexual onentation employment discrimination (which would cmoodv t.he states
policy), an inaividual would sue directly under that law See, Appendix I. p. !7 ireiectma
public policy contract claim).
126
Historicaiiv state or teaerai governments nave passea anti-discrimination ie'jisiation \\here
'here s a remonstrated problem ot discnmination against a recognized jrouo u oeopie.
Compeilina ;\iaence ot such discrimination, on oases sucn as race and render. '\as c\iuent
in i96'i .^-nen Title VII ot the Civil Rjizhts Ac: ot' l°6-l '.vas passea. Compeilin!: t'.:dence or"
iucn discrimination, on the basis or ace. was eviaent in 1967 when the .A;ie Discr.minatioa m
Emoioyment Ac: was passed. Compelling evidence ot sucn discrimination, on tne oasis ot'
disability, vas e'.ident in ;990 when the Amer.cans with Disaoiiities Act was cassed.
Comoeiling e'.;aence )t' such aiscnmination. on :r.e basis or' iexuai orientation, i i-.ident
:oaay T'le Tires appendices :o ;his testitnony document sucn cases ot' Jiscr:minat:on.
Appenai.x [ summarizes over t'irty cases ailetzmg emoiovment discrimination tnat na\e reaches
reaeral anu state couns over the years, and :hat in'^e resulte^J ;n udicial ooinions. -.openaix
II. Pan A. catalogs ;he number ot' complaints .ilea ;.t seven ot the eigiit states that i-'.a\e anti-
aiscr«nination .aws -- o\er SOO complaints o\"er ;.ne course ot ive vears. The '.ast maiority
ot tnese complaints aeal with employment. Pan B reproduces quotes irom anornev panic-.pants
■n the- Ljs Anueies (."'•■untv Bar Association Re::on on Sexual Or!eniation BiaS' whicn illustrate
the )\en aiscrtmination gay men and lesbians r^ce \n the labor market. .Appendix III
summarizes 23 personal cases ot" discrimination documentea by the Human Rianis Camnaign
Funa. The Committee has heara today from two people who have personally exneriencea
discrimination on the basis of sexuai orientation: Cher>'l Summerville and Ernest Dillon.
There is abundant evidence of employment discrimination against gay men. .esoians. and
bisexuais across this country. Evidence ot such aiscnmination lustitles passaae of ".he
Employment .\on-Discnmination Act or iQQu
III. STATE EXPERIENCES
The L'nnea States Congress would not be breaking .aew ground with oassage ot S. ZZjS. Eight
states and the District or Columbia alreaay have iaws tnat prohibit employment aiscnmination
on me lasis or sexual orientation. These states are '■Wisconsin, wnicn enactea the first law ;n
127
:^)8:. :oilovveu ^v Massacnusens ;n 19S9-. Conneutici:t ind Hauaii m ■.'^Q'. Ciiirbmia. DC.
\e-.v Jersev. jnu '-ermdht tn IQ'^Z; ana Minnesota in 190}.'
ADpendix II indicates ;ne .-lumoer ot sexuai onentation aiscnmination jomoiaints fiied since
inactment of mese <:ate :aus tor six oi' [he eignt states, li^tour of the .taies. :he cumulative
number oi sexuai onentation compiamts and i breaKdown ot ;ne numoer of employment
discrimination :cmDiaims ire notea. in "ne remaining :avo states. :ne numoer n' emolovmem
-•ompiaints are notea. ^.s a -general maner. me area or empiovment rst:resents ;he vast maiority
o: '.he :iaims oi ::iScnmina:ion based on sexuai orientation.
Here ore some examoies M those statistics. In Massacnusetts. wnicn enactea a sexual
onentation non-aiscnmination law in 1989, over 330 complaints have been filed wuh :he
.Vlassacnuserts Commission Against Discrimination MC. \Dl '?f these jomplaints. 1:6 allege
jiscrimination ;n emi3ioyment. None ot" these L-omoiaints nave gone :o ;ourt. The- iia\e either
been resolvea or aismissea.
In New jersev ^nicn enacted us :aw m 1982. '.3 complaints charging aiscnmination on the
basis ot sexuai onentation ■vere :V:;d for ail coverea areas in 1991-1992; 29 sucn compiamts
were r:ied .n ['^^2-1'^^'-. ma 2: sucn comoiamts ■■vere :'iiea ;n :'^Q3-i994. i^f -hese '2
comolaints. I: aeait vith .iilegec iiscrimination .r. emi:iovmer.t. •. -naiontv of -.nese jases
iia\e ii'.ner ?een iettiea or Jismissea. None nas ; a reacnea court.
Connecticut retlects similar numcers. In 199i.:'^'U2. :here -.ere :° .omolaints riiea c.nargmg
employment aiscnmination on the basis of se.xuai onentation. ^n '.^'^2-199}. mere vere .■',
sucn employment complaints.
Minnesota passea its iau quite .-ecently: rhe law recame itfectr-e on .\ugust 1. :99}. Since
that -rime. '. - comoiamts of sexual onentation iiscnmmation nave been filed -vitn -.r.e
' .All eignt states and the Distnct of Columbia orohibit sexual onentation aiscnmination
in employment, and ail but California i.xtend :his protection -.o nousing and puolic
accommodations. Minnesota and '.Visconsin also outlaw sexuai onentation discnmination in
public ana pnvate education.
128
Minnesota Department ot" Human Rights. Ten ot ;hftcompiaints concern employment md are
currently being processea.
IV. S. 2238: THE EMPLOYMENT NON-DISCRIMINATION ACT OF 1994
S. ZIjS. '.he Empioyment Non-Discnmination Act or' 199'^. reiDrcsents a reasoned and balanced
ipproacn :o remedying empioyment vjiscr.mmation on the basis ot sexual orientation.
"he core ot S. 2238 is found in Section j That section states:
A covered entity. ;n connection 'Auh empioyment or empioyment opportunities, siiall
not -
' I ) iubiect m mdiMduai :o dii'ferent siancaras or treatment on :;ie basis os
sexual orientation:
• 2^ discriminate auainst an individual basea on the sexual ■irientation ot' persons
with whom sucn individual ;s believed :o associate i)r '.o iia\e issociatea; or
1 3') other.vise jiscrimmate against an inahiauai on ihe rasis ot' sexual
orientation.
The prohibition ot' S. 222S is simple and straightfor.vard. \n employer .-nay not use the fact
of an- inar/iduai's sexual orientation in maxing employment aecisions. An empio>er mav not
'.reat an individual bener or worse because that inaividual •$ a gay man. a lesbian, a bisexual,
or a heterosexual. N'o better ana no worse -- just '.he same.
S. 222-8 does not deal with ;he issue of parmer benetlts. ''.Vhiie employers are free '.o provide
such bener'its :f they wish. S. 2228 does not create a right to such benents.
-S. 2223 aiso aces not provide for a 'disoarate imoact' claim. A disoarate impact claim is a
Claim tnat a raciaily neutral practice ot on emoiover .^as a aisprooonionateiv aaverse etfect on
persons ot a particular protected croup.
A disparate imoact claim under Title VII relies neaviiv on statistics. The plaintirf comnares
the percentage ot mdiviauals oi a panicuiar cenaer. race, or ettmicitv ;n an e.moiover s
't IS interesting to note that, of the ten comriaints. :l\e •\e:t '^rouuht by heterosexuals,
in tour 01 tnose cases, hete.'osexual men compiair.ea ot being perc::i\ea as gay and harassed
on tnat basis. In one complaint, a heterosexual Aoman comoiamed of being subject to
aiscnmination bv a lesbian.
129
worsrorce 'Mtn the percentage ot'sucn inaividuais in che pool or quaurlea aopiicnnts. :: '.nere
:s a irjr.iiicir.t JisparIt^ between :he percentages. :he piaintitf mav jrgiie :nai one jr more or
•.he emciover i racially aeutrai emoioyment practices causes the ^averse jrfec; --r. ihe -.ir.n'^
or 5ucn :ncn'.auais. If :he ;:iaintirf -nakes out :nis case, the empiover -nust t.-.t:n inow :he
chailensiea irr.Dloyment practice ;s loo-reiatea ana consistent with business necesiny
As you ivjiou- Congress codit'ied the 'Jisoarate ;mDact" ciaim anaer Title Vi[ :n tne Civii
Rights '.c: ?: :^^>!
S. ^33 e.xciudes disparate impact ciaims cnmariiy because it is ditTicuit to perrbrm -n accurate
itaustical inaivsis in the context ot" se.xuai orientation. Privacy concerns ordinariiy foreclose
jn accurate itatisiical count of all gay men. lesbians, bise.xuais. ana heterosexuals .a an
employer's workforce and in the qualified applicant pool. While one couid deveiop a count
of the number oi openiy-^iay people ;n a particular workforce, it would be diiftcuit. ;r not
impossible, to assess the number of openly-gay people ;n the relevant applicant pool.
.Moreover, gay cieopie do not usually face the type of discnmmaiion "hat taKes the torm o:
disparate imoact. .father, the discrimination that occurs usually :s either oven, mtentionai
discrimination, ^r racially neutral actions that are pretexts for discrimination. Both or these
types of actions ire rronibited by S. IZjS.
S. 2238 pronibits an employer from adopting a quota basea on sexual orientation. The mil also
prombits an emDiover t'rom giving preferential treatment to any indiviauai based on trie
■r.aiviuuari -exuai crtentaiion. This is stricter t.nan t.ne -uie wnich lopiies tinaer Title MI.
■ ..naer Title Vii. ^n imoioyer .Tiav \oiuntanly go beyona .-ace or gender neutrality ;n certain
circumstances, -nmariiy to remedy past discrimination. L'naer S. 22" S. wnile an imoiover
may increase tne ai\ersiry of its aoplicant t;ooi by aavertising and reacning out to memoers or
the gay communitv. the emoioyer .may not give -rer'erentiai treatment to an maividuai ttased
on that mdlviQuars sexual or.entation.
S- 2228 contains i rroad religious exemption. Tiie types oi religious organizations that ire
jxemcted are .teVivea trom a similar exemntion m Title '^'11. The scope of the ixemotton.
BOSTON PUBLIC LIBRARY
130 3 9999 05982 641 0
iiowever. is significantly broaaer -.han the scope a\ Title ■-■II. Title VII ixempts religious
organizations onlv wuh ?egara to discrimination basea on religion: these organizations remain
suDiect to Title Viri prohibition ot" discnminauon on such grounds as race and gender. By
contrast, except for protlt-making activities. S. 2238 exempts religious organizations from the
bill completely. ;nus exempting them from requirements based on sexual orientation.
S 22 J S iocs not aopiy to the relationship between the L'nitea States and memoers ot the
Armea Forces. Thus, the biil does .not affect current law on jay men. lesbians, and bisexuais
'n the miiuary.
S. 222-3 adopts the enforcement mechanisms of Title VII. as amenaed by the Civil Flights .Act
o: l'^'?l. There .s ,no aesire to re-tight banies regaraing enforcement .n this biil. Rather.
■A-nate'.er eniorcsment mechanisms are grantea :o. ana requirea oi. otner .Tunormes ana women
under 7«tie VII are :ne enforcement .mecnanisms that 'viil be irantea to. ana required oi.
individuals wno tirmg oiaims unaer this law. Thus, the reauirement oi filing ciaims -vnh the
Equal E.mpioyment lOpportunir;.- Commission tEEOC'i. the aoiiity of an maividoai to onng a
private right of action m count and the aoiiity of an indiviauai to receive miunctive retier and
iamaaes. up to the ;imits authorized by Title VII. are all incorporated by rererer.ce ;n i. 222-3.
Mr. C'.-.airman ana memoers of the Committee. ;t ;s time to pass the E.-noioyment .Von-
Discrt.mination .Act oi i'^'^'i.
! am anacning a statement . from Ralph G. Neas. E.tecutive Director of the Leadership
Conference on Civil Rights.
I would be oieased to answer any questions.
Thank you. That concludes this morning's hearing,
[Whereupon, at 1:11 p.m., the committee was adjourned.]
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